     Case: 17-11368      Document: 00514949143         Page: 1    Date Filed: 05/08/2019




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

                                                                                 FILED
                                    No. 17-11368                               May 8, 2019
                                  Summary Calendar                            Lyle W. Cayce
                                                                                   Clerk

UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DONNIE GRAY,

                                                 Defendant-Appellant


                  Appeals from the United States District Court
                       for the Northern District of Texas
                             USDC No. 3:17-CR-35-1


Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
       Donnie Gray appeals his sentence for possessing with intent to distribute
methamphetamine.           He contends that the district court imposed an
unconstitutionally vague and overbroad standard supervised release condition
requiring him to “allow the probation officer to visit [him] at any time at [his]
home or elsewhere” and to “permit the probation officer to take any items
prohibited by the conditions of [his] supervision that he or she observes in plain


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 17-11368    Document: 00514949143     Page: 2    Date Filed: 05/08/2019


                                 No. 17-11368

view.” He further argues that the district court procedurally erred by imposing
the condition without explanation.      Because Gray did not object to the
imposition of the condition or to the lack of an explanation, we review for plain
error. See United States v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir.
2009); see also Puckett v. United States, 556 U.S. 129, 135 (2009) (plain error
standard).
      We recently upheld a similar condition on plain error review, noting that
we have not yet addressed the constitutionality or substantive reasonableness
of such a condition or whether a sentencing court must give reasons for
imposing a standard supervised release condition. United States v. Cabello,
916 F.3d 543, 544 (5th Cir. 2019). Because our law remains unsettled and the
other federal circuits have reached divergent conclusions, Gray cannot satisfy
the second prong of the plain error test—that error be clear under existing law.
See United States v. McRae, 702 F.3d 806, 833 (5th Cir. 2012); compare United
States v. Kappes, 782 F.3d 828, 844, 850-51 (7th Cir. 2015), with, e.g., United
States v. Clarke, 428 F. App’x 712, 713 (9th Cir. 2011).
      AFFIRMED.




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