     Case: 16-41353   Document: 00514005306        Page: 1   Date Filed: 05/24/2017




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

                                    No. 16-41353
                                                                            Fifth Circuit

                                                                          FILED
                                                                      May 24, 2017

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

v.

LAURA RAMOS-GONZALES,

             Defendant - Appellant




                Appeal from the United States District Court
                     for the Southern District of Texas


Before STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
PER CURIAM:
      The dispute in this case arises from the district court’s decision on
remand to re-impose a special condition of supervised release on the
Defendant-Appellant Ramos-Gonzales.         Ramos-Gonzales pleaded guilty to
transporting an undocumented alien into the United States. At sentencing,
the district court imposed two special conditions of supervised release—a
nighttime restriction and drug surveillance. Ramos-Gonzales appealed those
conditions to this court, and this court remanded for resentencing on the
grounds that the district court committed plain error in failing to explain the
basis for the special conditions. At the subsequent sentencing hearing, the
district court re-imposed the drug surveillance condition based on Ramos-
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Gonzales’s 2012 conviction for marijuana possession. Ramos-Gonzales now
appeals the district court’s second judgment. We vacate the drug surveillance
special condition and affirm the sentence as modified.

                                        I. Background
       On October 4, 2015, Laura Ramos-Gonzales was arrested during her
attempt to transport undocumented individuals into the United States under
the rear seat of her vehicle in violation of 8 U.S.C. §§ 1324(a)(1)(A)(ii),
1324(a)(1)(A)(v)(II), and 1324(a)(1)(B)(ii). On October 28, 2015, a Federal
Grand Jury indicted Ramos-Gonzales on two counts of transporting an
undocumented alien. On November 12, 2015, Ramos-Gonzales pleaded guilty
to the first count pursuant to a written plea agreement. Following the plea, a
presentence investigation report (PSR) was prepared, which recommended a
Guidelines sentencing range of 8 to 14 months and a 3-year term of supervised
release. Ramos-Gonzales did not object to these calculations. The subsequent
sentencing proceedings, which represent the principal focus of this appeal, are
divided into two stages, divided by an appeal and order issued by this court.
       First Sentencing
       On January 26, 2016, the district court adopted the PSR as the findings
of the court and sentenced Ramos-Gonzales to 12 months in prison, followed
by 3 years of supervised release and accompanied by a $100 Special
Assessment. The district court imposed the “[s]tandard terms and conditions
of supervision,” and, importantly, imposed a “nighttime restriction of 12
midnight to 6:00 a.m. and drug surveillance.” 1 Ramos-Gonzales registered no




       1 The drug surveillance condition involves “periodic urine surveillance and/or breath,
saliva and skin tests for the detection of drug abuse as directed by the probation officer.” The
costs of these “detection efforts” are assessed to the defendant, “based on ability to pay as
determined by the probation officer.”
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objection to these additional conditions of supervised release at the sentencing
hearing.
      First Appeal
      Ramos-Gonzales appealed despite previously failing to register an
objection, arguing that the district court committed reversible plain error by
imposing the drug surveillance and nighttime restriction conditions of
supervised release. See Brief of Appellant, United States v. Ramos-Gonzales,
No. 16-40146, 2016 WL 3770852, at *8–14 (July 7, 2016). In particular, she
argued that the district court had failed to explain its reasons, and the record
itself did not furnish independent evidentiary support for the restrictions. Id.
at *9–10. With respect to the drug surveillance condition, Ramos-Gonzales
argued that “there [was] absolutely no evidence that [she] currently uses illegal
drugs,” and pointed out that the PSR indicated that she first smoked
marijuana at 14 years of age and had not engaged in such activity in 25 years.
Id. at *9. She also pointed out that the offense charged against her had nothing
to do with drug use, nor did any of her prior offenses. Id.
      The Government moved to remand the case for reconsideration of the
special conditions, agreeing with Ramos-Gonzales that “the district court
commit[ed] reversible error by failing to explain the reasons for imposing
special conditions of supervised release where the record is silent in support of
the special conditions.” The Government also agreed that the record “[did] not
indicate how the supervised release special conditions of nighttime restriction
and drug surveillance [were] related to the underlying offense of alien
transporting or to the relevant statutory considerations under 18 U.S.C. §
3553(a).” Id. at 3. In particular, the Government stated that “[a]lthough Ramos
has a 2012 conviction for possession of 44 pounds of marijuana and last smoked
marijuana 25 years ago, no indication in the record exists that she has an illicit


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drug problem to warrant drug surveillance requiring periodic urine and/or
breath, saliva, and skin tests to detect drug abuse.” Id.
      We conducted an independent review of the case, and exercised our
discretion to grant plain error relief, summarily remanding the case to the
district court for resentencing. Order, United States v. Laura Ramos-Gonzales,
No. 16-40146, at 2 (5th Cir. Aug. 17, 2016).
      Resentencing
      The district court conducted a resentencing hearing on September 27,
2016, at which time it reconsidered the special conditions. The district court
vacated the nighttime restriction, because Ramos-Gonzales would be living
with her children and because there was no evidence that the offense in
question occurred at nighttime. The district court decided to maintain the drug
surveillance condition, however. Ramos-Gonzales objected on the basis that
she “didn’t feel . . . the drug restrictions [applied to her] because [she had not]
used drugs for many years.” The district court replied: “Well you have a drug
conviction. So that’s going to stay and that’s the way that goes.” 2 Counsel for
Ramos-Gonzales spoke to preserve her objection to the drug surveillance
condition “as an invasion of privacy and a financial burden.” A colloquy on
those topics ensued. The district court concluded the discussion by asking: “Are
you denying her drug conviction?” Counsel responded: “Not the conviction,
your Honor. Just based on what’s in the PSR is that her drug use is very old in
time.” The district court re-imposed the drug surveillance condition and
concluded the hearing. Ramos-Gonzales filed this appeal.




      2  The district court was referring to Ramos-Gonzales’s previous conviction for
possession of 44.2 pounds of marijuana.
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                                  II. Standard of Review
       Where a defendant objects to special conditions of supervised release we
review the district court’s imposition of those conditions for abuse of discretion.
See United States v. Miller, 665 F.3d 114, 134 (5th Cir. 2011).
                                     III. Discussion
                                              A.
       On appeal, Ramos-Gonzales argues that re-imposition of the drug
surveillance condition was improper because the condition is not reasonably
related to the relevant statutory factors that govern the imposition of
conditions of supervised release, 3 and because the condition is not consistent
with the Sentencing Commission’s pertinent policy statements. See United
States v. Salazar, 743 F.3d 445, 451 (5th Cir. 2014) (noting that a district
court’s ability to impose special conditions of supervised release is limited by
statute). In particular, Ramos-Gonzales points out that her prior conviction did
not involve personal drug use, so there is no evidence to justify the surveillance
condition.
       The Government responds that imposition of the drug surveillance
condition based on the previous drug conviction addressed the sentencing
factors of Ramos-Gonzales’s “history and characteristics” as well as “protecting
the public and adequately deterring the defendant from committing future
criminal conduct.” 18 U.S.C. § 3553(a). The Government also points out that
notwithstanding Ramos-Gonzales’s objection to the special drug surveillance




       3   Ramos-Gonzales offers the alternative argument that the district court’s decision
to re-impose the drug surveillance special condition on remand violated the law of the case
doctrine and mandate rule insofar as this court’s order pursuant to the first appeal rejected
the 2012 conviction as a basis for that condition. She also argues that permitting the
probation officer to determine the number of drug tests she would be required to undergo
constituted an impermissible delegation of Article III authority. In light of our chosen holding
in this case, we pretermit discussion of these alternative arguments.
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condition, she did not object to the standard condition requiring periodic drug
testing.
      While district courts possess significant discretion in imposing
conditions of supervised release, that discretion is nonetheless limited by 18
U.S.C. § 3583(d), which distinguishes between mandatory and special
conditions of supervised release, and permits the court to impose special
conditions only in certain circumstances. See United States v. Paul, 274 F.3d
155, 164–65 (5th Cir. 2001). In particular, the special conditions must be
“reasonably related” to one of four factors: (1) “the nature and circumstances
of the offense and the history and characteristics of the defendant”; (2) “the
need . . . to afford adequate deterrence to criminal conduct”; (3) “the need . . .
to protect the public from further crimes of the defendant”; and (4) “the need
. . . to provide the defendant with needed educational or vocational training,
medical care, or other correctional treatment in the most effective manner.”
See 18 U.S.C. §§ 3583(d)(1), 3553(a)(1) and (2)(B)–(D); Paul, 274 F.3d at 165;
United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009). Moreover, “the
conditions may not impose a ‘greater deprivation of liberty than is reasonably
necessary for the purposes set forth in’ § 3553(a).” United States v. Ellis, 720
F.3d 220, 225 (5th Cir. 2013) (quoting 18 U.S.C. § 3583(d)(2)). Lastly, special
conditions must be consistent with any pertinent policy statements issued by
the Sentencing Commission. 18 U.S.C. § 3583(d)(3).
                                       B.
      We agree with Ramos-Gonzales that, on the facts of this case, any
reasonable relationship between the drug surveillance special condition and
the 2012 drug-related conviction would require evidence that Ramos-Gonzales
actually used drugs. We view the more general connection between Ramos-
Gonzales’s prior conviction and the special condition imposed—that is, the fact


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that both have something to do with drugs—as too superficial to justify
imposition of the special condition.
      Although the Government now attempts to defend the position that the
drug surveillance condition is reasonably related to the history and
characteristics of Ramos-Gonzales and the nature and circumstances of her
prior conviction, this contention contradicts its concession at the first appeal
that “[a]lthough Ramos has a 2012 conviction for possession of 44 pounds of
marijuana and last smoked marijuana 25 years ago, no indication in the record
exists that she has an illicit drug problem to warrant drug surveillance
requiring periodic urine and/or breath, saliva, and skin tests to detect drug
abuse.” The description of her history and characteristics and the nature of her
prior offense have not changed between appeals. The only variation in the
record on second appeal is the district court’s statement that the previous
conviction was the basis upon which the special condition was imposed. There
is no record evidence that Ramos-Gonzales engages in personal drug use, and
so we cannot contemplate any criminal conduct that a surveillance-related
special condition would detect or deter. See United States v. Mahanera, 611 F.
App’x 201, 204 (5th Cir. 2015) (noting that where “the record reveals no
evidence that [the defendant] has or had a drug or alcohol problem, and his
offense did not involve drug or alcohol use,” a special condition involving drug
testing did not reasonably relate to the history and characteristics of the




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                                       No. 16-41353
defendant, to the nature of his offense, or to any need to deter him from future
addiction-driven crimes). 4
       In sum, where there is no relevant evidence of drug use, the essential
characteristic of a defendant that makes surveillance for drug use reasonable
and appropriate is absent. 5 Accordingly, we conclude that the district court
abused its discretion in imposing the special drug surveillance condition on
Ramos-Gonzales. See Miller, 665 F.3d at 134.
                                              C.
       Although we hold that the drug surveillance special condition is not
supported by the district court’s reasons for its imposition in this case, we
conclude that remand is unnecessary because Ramos-Gonzales will be required
to undergo drug testing as a mandatory condition of supervised release
regardless. 18 U.S.C. § 3583(d); U.S.S.G. § 5D1.3(a)(4). We note the legal
distinction between the special and mandatory conditions of supervised release
contemplated by the scheme of § 3583(d), yet we are satisfied that on these
facts that the drug-related mandatory condition of supervised release


       4  Although Mahanera is potentially distinguishable from Ramos-Gonzales’s situation
insofar as the defendant’s PSR in that case included no prior convictions or arrests for drug-
related offenses, id. at 202, that potential distinction has no bearing on the key reason for
the court’s decision—lack of evidence showing drug use or abuse. See id.; cf. Salazar, 743
F.3d at 452 (noting that special condition prohibiting access to sexually stimulating materials
not reasonably related to deterrence where there was no evidence that defendant’s criminal
activities were driven by access to such materials or that defendant had “a high potential for
committing future sexual crimes”).
        5 A further examination of the policy statements included in the Guidelines supports

this view—the policy guidance on substance abuse-related special conditions provides that
“[i]f the court has reason to believe that the defendant is an abuser of narcotics, other
controlled substances or alcohol,” it is appropriate for the district court to impose:

       (A) a condition requiring the defendant to participate in a program approved by the
       United States Probation Office for substance abuse, which program may include
       testing to determine whether the defendant has reverted to the use of drugs or alcohol;
       and (B) a condition specifying that the defendant shall not use or possess alcohol.

U.S.S.G. § 5D1.3(d)(4).
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addresses any concerns relating to Ramos-Gonzales’s potential drug use.
Accordingly, no remand is necessary. 6
                                    IV. Conclusion
       For the reasons stated, we VACATE the special condition of supervised
release and otherwise AFFIRM the sentence as modified.




       6 We also observe that the sentencing hearing following this court’s remand was
conducted by telephone, without the physical presence of the defendant. Despite our
recognition that the defendant registered no objection to this procedure, we are constrained
to note that no authority for such a procedure has been presented, nor have we been able to
locate any. See Fed. R. Crim. Pro. 43. We take this opportunity to remind district courts of
the solemnity of the criminal proceeding and of the contribution that the physical presence
of all parties makes to the fairness, integrity, and public function of that proceeding. Cf.
United States v. Navarro, 169 F.3d 228, 235–39 (5th Cir. 1999). Accordingly, we advise
against conducting future sentencing hearings by telephone.

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                                 No. 16-41353
EDITH H. JONES, Circuit Judge, concurring:
       I concur in this opinion and draw attention to its fn. 6, which states that
there is no authority for the district court’s conducting the resentencing
hearing by telephone conference.      From what this court learned at oral
argument, a Federal Public Defender was present in court for the defendant,
the Judge herself only by telephone, the defendant “participated” from a
halfway house somewhere, and appellate counsel was unsure where the AUSA
was during the resentencing “hearing.”        There is no indication that the
defendant consented to this procedure. That no one objected, and all the
professional parties to the proceeding found this process convenient does not
make it proper.
      Perhaps this measure was viewed as a simple extension of the practice
of conducting sentencing by videoconferences. In such proceedings, the judge
presides from another location, while the defendant, together with his or her
family, and the AUSA are present in the court of conviction. The judge’s face
is on the two-way screen in the courtroom. Sentencing by videoconference is
not an ideal way to run a criminal justice system. It removes the presence of
the judge as a visible sign of the community’s conscience and may deprive the
judge of the ability to read the attitudes and body language of the defendant
at the moment the judge must decide a sentence.                  Sentencing by
videoconference seems even more troubling when, not uncommonly, evidence
must be offered and ruled on at the proceeding. Despite these difficulties,
videoconference sentencing has been practiced, when the defendant consents,
as a measure of necessity in courts that are understaffed or confront a high
volume of criminal cases. In a videoconference, at least, the judge wears a robe
in a court-like room, and all parties behave as in an ordinary courtroom setting.
      But as our opinion specifies, Rule 43(a)(3) mandates the defendant’s
“presence” at sentencing, and we have held that the defendant must first
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consent before the court may conduct sentencing by videoconference. United
States v. Navarro, 169 F.3d 228, 235 (5th Cir. 1999) (vacating sentencing where
defendant did not consent to video-conference).     See also United States v.
Lawrence, 248 F.3d 300, 303–04 (4th Cir. 2001). An in-person proceeding
allows the judge to “experience those impressions gleaned through . . . any
personal confrontation in which one attempts to assess the credibility or to
evaluate the true moral fiber of another.” United States v. Thompson, 599 F.3d
595, 599 (7th Cir. 2010) (internal quotation marks and citations omitted).
      Moreover, in contrast to Rule 43(a)(3), which makes no mention of video-
conferencing, Rules 5(f) and 10(c) expressly authorize videoconferencing a
defendant’s initial appearance and arraignment only “if the defendant
consents.” Fed. R. Crim. Pro. 5(f), 10(c). It is therefore a fair inference that
videoconferencing “is the exception to the rule, not the default rule itself.”
Thompson, 599 F.3d at 600–01.
      Sentencing by telephonic conferencing goes far beyond videoconferencing
in its lack of dignity and detachment from the moral drama of the criminal
justice system. Transforming criminal sentencing from a formal court hearing
into a telephonic conference—even on “minor” matters of subjugation to drug
testing and evening curfew—immeasurably reduces the seriousness of the
proceeding and threatens to compromise the openness of federal courts.
      Not only was there no face to face meeting of the parties here, but even
stranger, the defendant was in a halfway house somewhere while her Federal
Public Defender attorney was only available to her, remotely, by telephone.
Suppose a last-minute question had arisen on which the defendant needed
counsel’s advice? Suppose the AUSA had produced a witness for testimony on
the matter being sentenced? Suppose one of the parties to this conversation—
whether counsel or judge—was trying to multitask while halfway listening to


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the voice on the other end of the courtroom line? 1 There may be practical
answers to these questions, but they do not override one’s commonsense notion
that listeners are often inclined to “tune out” audio without corresponding
visual stimulation. Nor do practical excuses override the symbolic significance
of procedural formality by all participants and the physical proximity of the
defendant to her counsel. 2
       There is no provision for telephonic sentencing in the Rules. Conducting
resentencing, to say nothing of initial sentencing, by telephonic conference
reflects poorly on the dignity and integrity of federal court proceedings. The
Chief Judge’s admonition for the panel is fn. 6 of this opinion is significant.




       1 It is possible that the telephonic nature of this proceeding led to the judge’s becoming
confused about the purpose of resentencing. Although this court had ordered resentencing
on the conditions of supervised release without restriction, the judge perfunctorily reimposed
the special drug testing condition without any explanation and without any mention of the
remand order.

       2  Worth noting are the Advisory Committee Notes to the 2002 Amendments to the
Federal Rules of Criminal Procedure, appended to Fed. Rule Crim. Pro. 10. The Notes
explain in detail how carefully the innovation – permitting videoconferencing only for initial
appearance and arraignment “with the defendant’s consent” – must be applied. In particular,
the Notes advise courts to adopt standard procedures “for televising the video
teleconference . . . conducive to the solemnity of a federal criminal proceeding.” Among the
recommended measures are a room that reflects “the dignity of a federal courtroom” at the
detention facility; ensuring that the judge or a surrogate can carefully assess the defendant’s
condition; and insuring that “counsel and the defendant (and even the defendant’s immediate
family) are provided an ample opportunity to confer in private.” Conferencing by telephone
where the defendant’s “presence” is required cannot match these features.
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