     Case: 18-10001    Document: 00514847546     Page: 1   Date Filed: 02/22/2019




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                           United States Court of Appeals

                                  No. 18-10001
                                                                    Fifth Circuit

                                                                  FILED
                                                           February 22, 2019

UNITED STATES OF AMERICA,                                    Lyle W. Cayce
                                                                  Clerk
             Plaintiff – Appellee,

v.

JOHN MARTIN CABELLO, also known as Chinaman,

             Defendant – Appellant.




                 Appeal from the United States District Court
                      for the Northern District of Texas
                              No. 3:16-CR-415-2


Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
PER CURIAM:
      John Martin Cabello appeals the imposition of a “standard” condition of
supervised release that requires him to “permit a probation officer to visit
[him] at any time at home or elsewhere and . . . permit confiscation of any
contraband observed in plain view by the probation officer.” In his view, this
standard visitation condition is substantively unreasonable and at least
requires the district court to explain the reasons for its imposition.
      Because Cabello did not object in the district court, we review for plain
error. United States v. Ponce-Flores, 900 F.3d 215, 217 (5th Cir. 2018). To
demonstrate plain error, Cabello must show that: “(1) there was an error; (2)
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                                  No. 18-10001
the error was clear or obvious; (3) the error affected [his] substantial rights;
and (4) the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings such that we should exercise our discretion to reverse.”
United States v. Oti, 872 F.3d 678, 690 (5th Cir. 2017).
      We   have      “not   addressed   the   constitutionality   or   substantive
reasonableness of the challenged standard [visitation] condition or whether a
district court must explain its reasons for imposing a standard condition of
supervised release.” United States v. Ferrari, 743 F. App’x 560, 561 (5th Cir.
2018). As Cabello concedes, “[w]e ordinarily do not find plain error when we
‘have not previously addressed’ an issue.” United States v. Evans, 587 F.3d
667, 671 (5th Cir. 2009) (quoting United States v. Lomas, 304 F. App’x 300, 301
(5th Cir. 2008)). Because Cabello failed to show plain error, we AFFIRM the
imposition of the visitation condition as part of Cabello’s supervised release.




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                                  No. 18-10001
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:

      I concur fully in the affirmance of the district court’s sentence. With great
respect to the best intentions of my colleague, faithful adherence to the statute
does not require an explanation of each standard condition from the lips of
district judges and insisting on such a requirement can produce a robotic
delivery and perverse consequences in busy districts. Ticking off a laundry list
of explanations for thirteen additional standard conditions—most of which are
self-evident and administrative—constrains the district judge’s ability to
communicate directly with a defendant during this critical juncture of the
criminal proceeding. District judges are in the best position to tailor the
necessary process to ensure that defendants fully understand the constraints
imposed. Defendants are provided qualified counsel for sentencing—often
Federal Public Defenders—counsel who are keenly aware of these conditions
and can give assurances in open court of having explained the conditions to
their clients and can lodge any objections counsel may have. As the plain
language of 18 U.S.C. § 3583(d) does not require explanation of each standard
condition by the district judge, declining to do so is not unfaithful adherence to
this statute.




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                                 No. 18-10001
JENNIFER WALKER ELROD, Circuit Judge, concurring:

      I concur in the panel opinion as it correctly holds that Cabello cannot
prevail under the plain-error standard of review. However, I write separately
to emphasize that it may be more faithful to the statutory text for sentencing
courts to explain the reasons for imposing “standard” conditions of supervised
release.   Although the Sentencing Guidelines label certain conditions as
standard conditions, they are nonetheless discretionary—not mandatory—
conditions under 18 U.S.C. § 3583(d) that typically require an explanation.
                                       I.
      “In the Sentencing Reform Act of 1984, Congress eliminated most forms
of parole in favor of supervised release, a form of [post-confinement] monitoring
overseen by the sentencing court . . . .” Johnson v. United States, 529 U.S. 694,
696–97 (2000) (citation omitted). 18 U.S.C. § 3583 governs a sentencing court’s
discretion in deciding whether to impose supervised release and which
conditions to impose. 18 U.S.C. § 3583. Section 3583(d) classifies supervised
release conditions as either “mandatory” or “discretionary.” Id. § 3583(d). As
mandatory conditions, a sentencing court “shall” require that the defendant
not commit a crime, make restitution, not unlawfully possess or use a
controlled substance, and submit to drug tests. Id. In addition, § 3583(d) also
states that:
      The court may order, as a further condition of supervised release,
      to the extent that such condition –
            (1) is reasonably related to the factors set forth in
            [18 U.S.C. §] 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);
            (2) involves no greater deprivation of liberty than is
            reasonably necessary for the purposes set forth in
            [18 U.S.C. §] 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and
            (3) is consistent with any pertinent policy statements issued
            by the Sentencing Commission pursuant to 28 U.S.C. 994(a);



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                                  No. 18-10001
      any condition set forth as a discretionary condition of probation in
      [18 U.S.C. § 3563(b)] and any other condition it considers to be
      appropriate . . . .

Id. Section 3563(b), in turn, lists 23 conditions that the sentencing court may
impose as discretionary conditions. 18 U.S.C. § 3563(b).
      The divide between mandatory and discretionary conditions under
§ 3583(d) is clear.   Mandatory conditions are those specifically listed in
§ 3583(d) that a sentencing court “shall” impose with no room for discretion.
Id. § 3583(d).    Discretionary conditions include everything else:          those
conditions specifically set forth in § 3563(b), as well as any other conditions
that a sentencing court considers to be appropriate, that the court “may”
impose, only “to the extent that such condition[s]” can satisfy the three
prerequisites. Id.
      Although § 3583(d) divides supervised release conditions into only two
categories, courts are more familiar with four different types of conditions:
mandatory, discretionary, standard, and special. This four-part categorization
is nowhere to be found in the statutory text of § 3583(d). This instead is largely
a product of the Sentencing Guidelines. See U.S.S.G. § 5D1.3; see also United
States v. Bryant, 754 F.3d 443, 444 (7th Cir. 2014) (“[S]tandard conditions are
found in the sentencing guidelines rather than in the Sentencing Reform Act”).
The Guidelines recommend 13 standard conditions, many of which are
identical to or expand on some of the statutory discretionary conditions.
Compare 18 U.S.C. § 3563(b)(16) (“[The defendant shall] permit a probation
officer to visit him at his home or elsewhere as specified by the court”), with
U.S.S.G. § 5D1.3(c)(6) (“The defendant shall allow the probation officer to visit
the defendant at any time at his or her home or elsewhere . . . ”).
      The Administrative Office of the United States Courts (AO), which has
provided guidance for sentencing courts, has similarly observed that

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                                        No. 18-10001
“[d]iscretionary conditions of supervision are differentiated into ‘standard’ and
‘special’ conditions.” 1 To further aid sentencing courts, the AO developed and
distributed AO Form 245B, “Judgment in a Criminal Case,” which incorporates
all 13 standard conditions recommended by the Guidelines. 2 In turn, many
district courts—including every district court in Texas—have adopted or
incorporated the standard conditions listed in AO Form 245B as their own
standard conditions. 3
       Notwithstanding the fact that the Sentencing Commission and the AO
have categorized these conditions as standard conditions, these conditions are
discretionary conditions under § 3583(d), the statute given to us by Congress.
                                               II.
       All discretionary conditions under § 3583(d)—regardless of whether they
are standard or special conditions under the Guidelines—typically require an
explanation by the sentencing court. Congress has required sentencing courts
to “state in open court the reasons for its imposition of the particular sentence.”
18 U.S.C. § 3553(c); see also United States v. Alvarez, 880 F.3d 236, 240 (5th
Cir. 2018); cf. United States v. Mondragon-Santiago, 564 F.3d 357, 360 (5th
Cir. 2009) (“The district court must adequately explain the sentence ‘to allow
for meaningful appellate review and to promote the perception of fair


       1  Overview of Probation and Supervised Release Conditions, Administrative Office of
the     U.S.    Courts    8    (Nov.    2016),    https://www.uscourts.gov/sites/default/files/
overview_of_probation_and_supervised_release_conditions_0.pdf (“Standard conditions are
applicable to all defendants. Special conditions provide for additional . . . monitoring tools as
necessary to achieve the purposes of sentencing in the individual case.”).
        2AO    Form      245B    can    be    accessed     through    the      following    link:
https://www.uscourts.gov/sites/default/files/ao245b.pdf.
        3E.D. Tex. General Order 17-3, General Order Adopting the Standard Conditions of

Supervision (Jan. 27, 2017), http://www.txed.uscourts.gov/sites/default/files/goFiles/17-
03_0.pdf; N.D. Tex. Probation and Pretrial Services, Conditions of Supervision,
https://www.txnp.uscourts.gov/content/conditions-supervision (last visited Jan. 29, 2019);
S.D. Tex. General Order No. 2017-01 (Jan. 6, 2017), https://www.txs.uscourts.gov/
district/genord; W.D. Tex. Standing Order, Conditions of Probation and Supervised Release
(Nov. 28, 2016), https://www.txwd.uscourts.gov/judges-information/standing-orders/.
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                                  No. 18-10001
sentencing.’ ” (quoting Gall v. United States, 552 U.S. 38, 50 (2007))). Applying
§ 3553(c) and § 3583(d) to the Guidelines’ special conditions, a subset of
statutory discretionary conditions, “courts of appeals”—including this court—
“have consistently required district courts to set forth factual findings to justify
special . . . conditions.” United States v. Salazar, 743 F.3d 445, 451 (5th Cir.
2014) (quoting United States v. Warren, 186 F.3d 358, 366 (3d Cir. 1999)).
“Even without factual finding by the district court, we may still affirm a special
condition if we can infer the district court’s reasoning after an examination of
the record.” Alvarez, 880 F.3d at 240. However, if neither the district court’s
stated reasoning nor the record supports the imposition of the special
condition, then “we must vacate and remand for resentencing.” United States
v. Caravayo, 809 F.3d 269, 276 (5th Cir. 2015).
      We have not yet adopted a similar understanding of § 3553(c) and
§ 3583(d) for the Guidelines’ standard conditions, another subset of statutory
discretionary conditions. Although we have observed that standard conditions
found in written judgment need not be orally pronounced because they are
“[i]mplicit in the very nature of supervised release,” United States v. Torres-
Aguilar, 352 F.3d 934, 936 (5th Cir. 2003) (alteration in original) (quoting
United States v. Truscello, 168 F.3d 61, 62 (2d Cir. 1999)), we have not directly
“addressed . . . whether a district court must explain its reasons for imposing
a standard condition of supervised release,” United States v. Ferrari, 743 F.
App’x 560, 561 (5th Cir. 2018). Our sister circuits that have examined the issue
have expressed differing views.       Some of our sister circuits have treated
standard conditions to be implicit in supervised release like mandatory
conditions—thus not requiring any explanation—because the Guidelines have
recommended those conditions as standard. See, e.g., United States v. Munoz,
812 F.3d 809, 823 (10th Cir. 2016); United States v. Tulloch, 380 F.3d 8, 13 (1st


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                                    No. 18-10001
Cir. 2004) (“The Guidelines flatly recommend the standard conditions, without
qualification or prerequisite.”).
        This approach seems fraught with potential problems. At threshold, the
Guidelines do not state that a sentencing court should impose the
recommended standard conditions without explaining the reasons for imposing
them.    The Guidelines simply recommend them as options.            See U.S.S.G.
§ 5D1.3(c). And regardless of what the Guidelines say, the Guidelines cannot
negate § 3553(c)’s statutory requirement that a court explain the reasons for
imposing a particular sentence. Moreover, that the Guidelines have labeled
certain conditions as standard conditions does not change the fact that
Congress has classified those conditions as discretionary conditions under
§ 3583(d). And if they are discretionary conditions under § 3583(d), then they
should be justified under the factors laid out in § 3583(d). In sum, failure to
provide reasons for standard conditions runs the risk of blurring the clear
divide between mandatory and discretionary conditions in § 3583(d) by
conflating them.
        In my view, the Seventh Circuit’s approach is more faithful to § 3553(c)
and § 3583(d). The Seventh Circuit requires its district courts to explain why
they are imposing standard conditions. United States v. Kappes, 782 F.3d 828,
846 (7th Cir. 2015). As the Seventh Circuit observed, “a condition’s label in
the guidelines is ultimately irrelevant. All discretionary conditions, whether
standard, special or of the judge’s own invention, require findings.” Id.
        One may contend that the more textually faithful approach may create
more work for sentencing courts. However, I do not think that requiring
sentencing courts to explain the imposition of standard conditions would be
overly cumbersome. Like in other sentencing contexts, a sentencing court
would not necessarily need to make a lengthy explanation to justify imposing
standard conditions. See United States v. Sanchez, 667 F.3d 555, 567 (5th Cir.
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2012) (“[W]hether a lengthy explanation of the sentencing judge’s reasoning is
necessary is a case-specific inquiry.”). The explanations can be brief as long as
they are legally sufficient. See id.; see also Rita v. United States, 551 U.S. 338,
358 (2007).    Also, standard conditions only need to be reasonable under
§ 3583(d)—a relatively low threshold—which we review under a highly
deferential abuse-of-discretion standard.         Salazar, 743 F.3d at 451.
Furthermore, we may determine that a sentencing court’s failure to make
findings was harmless if the record adequately supports such findings. Id.
      In any event, I encourage courts to give reasons at sentencing for
discretionary conditions to be faithful to the text of § 3553(c) and § 3583(d).
Although a sentencing court’s interest in streamlining its docket is an
important one, we have previously rejected a sentencing court’s effort to
streamline the imposition of the Guidelines’ special conditions “based on
boilerplate conditions imposed as a matter of course.” Caravayo, 809 F.3d at
276. I see no express permission under § 3553(c) and § 3583(d) to similarly
streamline the imposition of the Guidelines’ standard conditions. Accordingly,
the more textually faithful practice for sentencing courts under § 3553(c) and
§ 3583(d) is to explain the reasons for imposing all statutory discretionary
conditions—both standard and special conditions under the Guidelines.




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