    Case: 18-60380   Document: 00514912763       Page: 1   Date Filed: 04/11/2019




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


                               No. 18-60380                          FILED
                                                                  April 11, 2019
                                                                  Lyle W. Cayce
                                                                       Clerk

UNITED STATES OF AMERICA,

                                            Plaintiff–Appellee,

versus

DONALD LEE HATHORN,

                                            Defendant–Appellant.




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




Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

     Donald Hathorn violated his supervised release (“SR”) by testing positive
for drug use on multiple occasions. The district court revoked SR and imposed
a special condition of SR that Hathorn challenges on appeal. We affirm.

                                      I.
     In 2010, Hathorn pleaded guilty of possession with intent to distribute
five or more grams of cocaine base.        The district court sentenced him to
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106 months’ imprisonment and 6 years’ SR. As a result of changes to the
Sentencing Guidelines that lowered the range for Hathorn’s crime of convic-
tion, his sentence was reduced to 74 months. See 18 U.S.C. § 3582(c)(2) (2012).

      In May 2016, Hathorn was released from prison and began his SR. The
next month, he tested presumptively positive for marihuana. The district court
modified his supervision to require that he “submit [his] person, residence,
vehicle, and office to a search, conducted by the U.S. Probation Office at a rea-
sonable time, and in a reasonable manner, based upon reasonable suspicion of
contraband or evidence of a violation of a condition of release.” The court
explained that the “condition would act both as a deterrent for possible future
non-compliance and a valuable tool for the probation office if warranted.”
Hathorn agreed to the modification.

      In October 2016, Hathorn again tested presumptively positive for drug
use. Though he denied using cocaine, the lab results confirmed its presence.
Hathorn agreed to a modification of SR that included participation in an in-
patient drug treatment program.

      Nevertheless, in November 2017, Hathorn tested positive for cocaine and
methamphetamine, initially denying use but, when confronted with lab confir-
mation, admitting it. In March 2018, he tested positive for cocaine and again
denied use, but lab results confirmed otherwise. Based on these violations of
the conditions of SR, the probation office petitioned the court for a warrant to
arrest Hathorn.

      At his revocation hearing, Hathorn admitted the violations.         When
Hathorn’s counsel asked the court to consider drug treatment in lieu of sig-
nificant jail time, the probation officer replied that Hathorn “never once
brought up any need for treatment, never once admitted to any of his positive


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                                   No. 18-60380
drug tests until we got lab confirmation[,] [and] [w]as not honest with [the pro-
bation office].” Therefore, “at th[at] point,” the probation officer “fe[lt] like we
need to control [Hathorn’s] behavior.”

      After hearing from Hathorn, his counsel, and the probation officer, the
district court determined that Hathorn had violated the conditions of SR. It
revoked SR and sentenced him to six months’ imprisonment to be followed by
42 months’ SR and imposed a special condition of SR requiring that he “shall
submit his person, residence, computers, cellular telephones, all other elec-
tronics and vehicles to searches by the United States Probation Officers, at any
time, to be conducted in a reasonable manner, under reasonable suspicion of
contraband or illegal activity.”

      Hathorn “object[ed] to the search condition with all the electronics”
because it is “typically a special condition for sex offenders, and [he] was orig-
inally convicted of possession with intent to distribute.” The court overruled
the objection, explaining that
      [t]he reason that th[e] special condition is being imposed is because
      [Hathorn] has a conviction for drug dealing. He has shown that he
      has a drug addiction—apparently a drug addiction, or certainly a
      drug abuse problem, and one of the best ways to discover using
      illegal drugs is to look at somebody’s cell phone or communication
      device.
      On appeal, Hathorn challenges only the portion of the special condition
of SR allowing probation officers to search his computers, cellular telephones,
and all other electronics. He asserts that the district court abused its discre-
tion in imposing the special condition because it is not (1) reasonably related
to any of the 18 U.S.C. § 3553(a) factors, (2) narrowly tailored such that it does
not involve a greater deprivation of liberty than is reasonably necessary to
achieve the § 3553(a) factors, and (3) consistent with the policy statements
issued by the Sentencing Commission.

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                                       II.
      “We review a preserved challenge to a special condition of [SR] for abuse
of discretion.” United States v. Caravayo, 809 F.3d 269, 272 (5th Cir. 2015)
(per curiam). That “review is highly deferential as the sentencing judge is in
a superior position to find facts and judge their import under [18 U.S.C.]
§ 3553(a) with respect to a particular defendant.” United States v. Miller,
665 F.3d 114, 119 (5th Cir. 2011) (alteration in original) (citation omitted).

      “A district court has wide discretion in imposing terms and conditions of
[SR].” United States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001). It may impose
any condition that “it considers to be appropriate” so long as three require-
ments are satisfied. 18 U.S.C. § 3583(d).

      First, the condition must be “reasonably related” to one of four factors in
§ 3553(a): (1) “the nature and circumstances of the offense and the history and
characteristics of the defendant”; (2) the “adequate deterrence [of] criminal
conduct”; (3) the “protect[ion] [of] the public from further crimes of the defen-
dant”; and (4) the “provi[sion] [of] needed educational or vocational training,
medical care, or other correctional treatment.”        18 U.S.C. §§ 3583(d)(1),
3553(a)(1), (2)(B)–(D); see also United States v. Weatherton, 567 F.3d 149, 153
& n.1 (5th Cir. 2009). “Second, the condition cannot impose any ‘greater depri-
vation of liberty than is reasonably necessary’ to advance deterrence, protect
the public from the defendant, and advance the defendant’s correctional
needs.” Weatherton, 567 F.3d at 153 (quoting 18 U.S.C. § 3583(d)(2)). Third,
the condition must be “consistent with any pertinent policy statements issued
by the Sentencing Commission.” 18 U.S.C. § 3583(d)(3).

                                       III.
      Hathorn claims that the district court abused its discretion because the
special condition does not satisfy any of the three statutory requirements.
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                                   No. 18-60380
Hathorn’s assertions are meritless. The court appropriately exercised its wide
discretion to craft a special condition it considered proper and that met the
three requirements. Highly deferential abuse-of-discretion review reveals no
error.

                                         A.
         Hathorn maintains that the special condition is not reasonably related
to any of the factors in § 3553(a). His contentions are unpersuasive.

         First, Hathorn asserts that the special condition does not reasonably
relate to “the nature and circumstances of the offense” and “the history and
characteristics of the defendant.” He states that his underlying conviction was
for drug dealing, but it occurred “over ten years ago,” and “[t]here is no indica-
tion or implication of any kind that he is still a drug dealer.” But Hathorn fails
to acknowledge that he repeatedly violated the conditions of his SR by using
drugs. The district court was not attempting to address a past violation but
was imposing the condition to help combat Hathorn’s continued involvement
with illegal drugs. It determined that “one of the best ways to discover using
illegal drugs is to look at somebody’s cell phone or communication device.” The
special condition thus permits the probation office to search those devices,
critical instruments that facilitate drug use, upon reasonable suspicion. There-
fore, the special condition reasonably relates to “the nature and circumstances
of the offense” and “the history and characteristics of the defendant.”

         In United States v. Erwin, 675 F. App’x 471 (5th Cir. 2017) (per curiam),
we upheld a similar condition under comparable circumstances.             The SR
included a special condition subjecting the defendant to “the search of [his]
premises, vehicle or person, day or night, with or without a warrant, at the
request of the probation officer to determine the presence of controlled
substances, firearms or any other contraband.”         Id. at 472 (alteration in
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                                      No. 18-60380
original). Because the defendant “was convicted of a drug-trafficking offense
and had multiple drug-related [SR] release violations,” the special condition
was reasonably related to the nature and circumstances of the offense and the
defendant’s history and characteristics. Id. Like the defendant in Erwin,
Hathorn was convicted of a drug-trafficking offense, violated his SR multiple
times by using drugs, and is now facing a special condition that allows for
searches to discover drugs. Erwin thus counsels that this special condition is
reasonably related to the nature and circumstances of the drug-trafficking
offense and the defendant’s history and characteristics, namely, repeatedly
violating SR by using drugs.

       Second, Hathorn avers, without elaboration, that the special condition is
not reasonably related to deterring criminal conduct adequately “[f]or the same
reasons” as why it is not reasonably related to the nature and circumstances
of his offense and his history and characteristics. Hathorn’s claim strains cre-
dulity. Subjecting Hathorn’s electronic devices to searches by the probation
office “in a reasonable manner, under reasonable suspicion of contraband or
illegal activity” is reasonably related to deterring him from entangling himself
with drugs. Cell phones, computers, and other electronic devices are vital to
the modern-day drug trade. 1 Consequently, knowing that the probation office
might search his electronic devices and discover his drug use, Hathorn could
decide not to use drugs because the risk of apprehension is too high. Therefore,
the special condition reasonably relates to adequate deterrence of criminal
conduct.



       1 See United States v. Mozingo, 728 F. App’x 400, 400–01 (5th Cir. 2018) (per curiam)
(discussing evidence gathered from a cell phone consisting of “drug related text messages
concerning drug sales” that established that defendant violated SR); United States v.
Espinoza-Seanez, 862 F.2d 526, 538 (5th Cir. 1988) (explaining that a jury “could have
decided” that a cell phone was a “‘tool[] of the trade’ for a drug trafficker”).
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      Third, Hathorn perfunctorily asserts that there is “no reason that sub-
jecting [him] to searches of his electronic devices protects the public.” To the
contrary, subjecting him to the specter of searches of his electronic devices, on
reasonable suspicion, protects the public from Hathorn’s further crimes by
deterring him from perpetuating the drug trade and using drugs. Again,
Hathorn could decide that the risk of detection is too high, so he will refrain
from using or trafficking in drugs, thereby protecting the public from further
crimes.

      We therefore easily determine that three of the four § 3553(a) factors are
satisfied. We need not assess whether the special condition is related to pro-
viding Hathorn with educational or vocational training, medical care, or other
correctional treatment.

      Hathorn contends that the special condition involves a greater depriva-
tion of liberty than is reasonably necessary to advance deterrence, protect the
public from him, and advance his correctional needs because it is “overly
broad,” “allow[ing] a probation officer to access all aspects of [his] life, which
will reveal a wealth of private information that has nothing to do with drug
use.” Relying on Riley v. California, 573 U.S. 373, 394 (2014), Hathorn reasons
that because the Supreme Court there recognized that “‘[t]he sum of an indi-
vidual’s private life can be reconstructed’ through a cell phone search,” the
special condition, which allows for cell phone searches, is necessarily “not nar-
rowly tailored to achieve the goals of § 3553(a).” Precedent does not support
Hathorn’s theory.

      In United States v. Knights, 534 U.S. 112, 119 (2001) (internal quotation
marks and citation omitted), the Court recognized that “[i]nherent in the very
nature of probation is that probationers do not enjoy the absolute liberty to
which every citizen is entitled.”      Consequently, “[w]hen an officer has

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                                 No. 18-60380
reasonable suspicion that a probationer subject to a search condition is
engaged in criminal activity, there is enough likelihood that criminal conduct
is occurring that an intrusion on the probationer’s significantly diminished
privacy interests is reasonable.” Id. at 121. Thus, the warrantless search of a
probationer’s home on reasonable suspicion under a probation condition did
not violate the Fourth Amendment. Id.

      In United States v. Winding, 817 F.3d 910, 915–17 (5th Cir. 2016), rely-
ing on these principles, but in the context of SR, this court upheld, on plain-
error review, the imposition of a special condition allowing a warrantless
search of electronic devices on reasonable suspicion of unlawful conduct. We
explicitly determined that the special condition did not place “a greater burden
on [the defendant’s] liberty than is necessary.” Id. at 916.

      Like the defendant in Winding, Hathorn has a “recent history of repeated
. . . offenses, a history that bears a reasonable relationship to the search con-
dition.” Id. As a supervised releasee, Hathorn’s entitlement to the absolute
liberty that ordinary citizens enjoy is circumscribed. Id. Furthermore, any
searches of his electronic devices are permitted only “under reasonable suspi-
cion of contraband or illegal activity,” “thereby subjecting [Hathorn] at most to
intermittent searches (and perhaps none at all if there is never reasonable sus-
picion).” Id. at 917. Like in Winding, “the possibility of intermittent searches”
is not “too much of a burden on [Hathorn’s] already reduced liberty interest in
light of his prior criminal history.”       Id.   Accordingly, the deprivation of
Hathorn’s liberty is not more than is reasonably necessary to advance deter-
rence, protect the public from him, and serve his correctional needs.

      Riley is not to the contrary. First, Riley addressed whether a warrant
was required to search an arrestee’s cell phone, 573 U.S. at 401, not whether a
special condition of SR could include a provision allowing for the warrantless

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search of electronic devices on reasonable suspicion. Second, the Court recog-
nized that “other case-specific exceptions may still justify a warrantless search
of a particular phone.” Id. at 401–02. Other circuits have interpreted this
carveout to authorize searches of cell phones conducted as part of SR. 2

                                             B.
       Hathorn claims that the special condition is inconsistent with the Sen-
tencing Commission’s policy statements. He asserts that the only policy state-
ment that “relates to” the special condition is U.S.S.G. § 5D1.3(d)(4) because
his underlying offense is for drug dealing, and his SR violations involved drug
use. Consequently, because § 5D1.3(d)(4) mentions only drug treatment, drug
testing, and alcohol abstention, Hathorn contends, “[i]t has nothing to do with
the subject special condition,” and, therefore, the condition is inconsistent with
the Commission’s policy statements, so the district court abused its discretion.

       Nevertheless, “[a] district court has discretion to craft conditions of [SR],
even if the Guidelines do not recommend those conditions.” United States v.
Windless, 719 F.3d 415, 421 (5th Cir. 2013). Thus, even though § 5D1.3(d)(4)
recommends a few potential special conditions for defendants with substance-
abuse issues, it does not cabin a district court’s discretion to only those
conditions. The district court explained that the purpose of imposing the
special condition allowing for the warrantless search of Hathorn’s electronic
devices on reasonable suspicion was to detect illegal drug use. That purpose
relates to both Hathorn’s underlying conviction for possession with intent to



       2 See, e.g., United States v. Jackson, 866 F.3d 982, 985 (8th Cir. 2017) (determining
that a warrantless search of defendant’s cell phone while on SR was constitutional and stat-
ing that “Riley addressed privacy interests of an arrestee, not the circumscribed interests of
an offender serving a term of [SR]”); United States v. Hilton, 625 F. App’x 754, 760 (6th Cir.
2015) (explaining that defendant’s “[SR] terms surely provide one of the[] exceptions” to
Riley).
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distribute and his repeated SR violations for drug use, and it provides a means
to begin to remedy that drug use through effective detection. Consequently,
the special condition is consistent with § 5D1.3(d)(4), which addresses sub-
stance abuse, and therefore is consistent with the Sentencing Commission’s
policy statements.

      Accordingly, the special condition satisfies the three § 3583(d) factors.
The district court did not abuse its discretion in imposing it.

      AFFIRMED.




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