             Case: 17-10767     Date Filed: 02/15/2018   Page: 1 of 5


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                         ________________________

                                No. 17-10767
                            Non-Argument Calendar
                          ________________________

                    D.C. Docket No. 0:16-cr-60287-CMA-1



UNITED STATES OF AMERICA,

                                                                 Plaintiff-Appellee,

                                      versus

RAPHAEL OSWALD,
a.k.a. Mackenson R. Olibrice,

                                                             Defendant-Appellant.

                         ________________________

                  Appeal from the United States District Court
                      for the Southern District of Florida
                        ________________________

                                (February 15, 2018)

Before JULIE CARNES, ANDERSON, and HULL, Circuit Judges.

PER CURIAM:
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      Raphael Oswald appeals the district court’s decision to impose a condition

of supervised release requiring him to submit to searches not supported by

reasonable suspicion or probable cause, following his convictions for one count of

wire fraud in violation of 18 U.S.C. § 1343, one count of aggravated identity theft

in violation of 18 U.S.C. § 1028A(a)(1), and one count of theft of public money in

violation of 18 U.S.C. § 641. On appeal, Oswald argues that the district court

abused its discretion in imposing the condition because the court did not

adequately explain why it was imposing the condition, and because the condition

violates the Fourth Amendment.

                                            I

      Although we ordinarily view the district court’s imposition of conditions of

supervised release for an abuse of discretion, we are limited to reviewing for plain

error when the defendant failed to object to the condition in the district court and

raises the issue for the first time on appeal. United States v. Carpenter, 803 F.3d

1224, 1237 (11th Cir. 2015). To prevail under the plain error standard, an

appellant must show: (1) an error occurred; (2) it was plain; (3) it affected his

substantial rights; and (4) it seriously affected the fairness of the judicial

proceedings. Id. at 1238. An error is plain if it is obvious and clear under current

law. Id. If neither we nor the Supreme Court has ever resolved this issue, there

can be no plain error with regard to that issue. Id. at 1238-39.


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      A district court may order special conditions of supervised release so long as

each condition: (1) is reasonably related to the sentencing factors listed in 18

U.S.C. § 3553(a), including the nature and circumstances of the offense, the history

and characteristics of the defendant, the need for adequate deterrence, the need to

protect the public, and the need to provide the defendant with needed training,

medical care, or correctional treatment; (2) involves no greater deprivation of

liberty than is reasonably necessary to accomplish the goals of deterrence,

protecting the public, and rehabilitation; and (3) is consistent with any pertinent

policy statements issued by the Sentencing Commission. United States v. Tome,

611 F.3d 1371, 1376 (11th Cir. 2010); 18 U.S.C. § 3583(d)(l)–(3); see also 18

U.S.C. § 3553(a)(1), (2)(B)–(D). We do not require that a special condition be

supported by each § 3553(a) factor; rather, each factor is an independent

consideration to be weighed. Tome, 611 F.3d at 1376. Moreover, while a

condition should not unduly restrict a defendant’s liberty, a condition is not invalid

simply because it affects his ability to exercise constitutionally protected rights.

Id.

      The Supreme Court has held that it is not unconstitutional for an officer to

conduct a suspicionless search of a parolee subject to a parole condition

authorizing such searches. Samson v. California, 547 U.S. 843, 857 (2006). In so

holding, the Supreme Court concluded that, because the search condition was


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clearly expressed to the parolee, his reasonable expectation of privacy was

diminished, and thus the Fourth Amendment was not violated. Id. at 852. For a

similar reason, we held that a probation condition requiring the probationer to

submit to searches without a warrant was constitutional. Owens v. Kelley, 681

F.2d 1362, 1366-69 (11th Cir. 1982). We have also recognized the similarity

between probation and supervised release. United States v. Gaskell, 134 F.3d

1039, 1044 (11th Cir. 1998) (extending our reasoning in several supervised release

cases to the probation context).

      Oswald has not established that the district court committed plain error in

imposing the permissible search condition. Although the district court did not

explicitly discuss its reasons for imposing the condition, Oswald has cited no

Supreme Court or Eleventh Circuit precedent establishing that the district court

was required to do so. Moreover, the court did emphasize Oswald’s criminal

history and the need to provide deterrence and promote respect for the law. Given

the record with respect to these matters, it is not obvious that the district court

committed an error because it is not obvious that the permissible search condition

is not reasonably related to the sentencing factors of § 3553(a), involves a greater

deprivation of liberty than is necessary, or is inconsistent with the policies of the

Sentencing Commission. See Tome, 611 F.3d at 1376. Even if the imposition of




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the permissible search condition without explanation was error, the error was not

plain. See Carpenter, 803 F.3d at 1238-39.

      Oswald has also failed to establish plain constitutional error. In light of the

Supreme Court’s decision in Samson and our decisions in Owens and Gaskell, it is

not clear under current law that the permissible search condition is

unconstitutional. Accordingly, even if it were a constitutional error to impose the

condition, the error was not plain. See Carpenter, 803 F.3d at 1238-39.

      Because the district court did not plainly err in imposing the permissible

search condition as one condition of Oswald’s supervised release, we affirm.

      AFFIRMED.




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