     Case: 15-50986      Document: 00513675683         Page: 1    Date Filed: 09/13/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                      No. 15-50986                                FILED
                                                                          September 13, 2016

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

v.

JOSE ALFREDO MAGANA, JR.,

              Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                            USDC No. 3:14-CR-2165-1


Before JONES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
       Defendant–Appellant Jose A. Magana, Jr. appeals his sentence, arguing
the district court committed reversible plain error by subjecting him to a term
of intermittent confinement as a mandatory condition of his supervised
release. Because Magana has not demonstrated that his appeal is ripe for
review, we DISMISS for lack of jurisdiction.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 15-50986    Document: 00513675683        Page: 2   Date Filed: 09/13/2016



                                 No. 15-50986
                              I. BACKGROUND
      Magana pleaded guilty to being a felon in possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The district court sentenced him to a within-
Guidelines range of 84 months of imprisonment and a three-year term of
supervised release. The district court at sentencing announced that Magana’s
term of supervised release included “the special condition that [he] submit to
up to one year of intermittent confinement at the direction of the Court
pursuant to law.” See 18 U.S.C. § 3563(b)(10). Magana objected to the
substantive reasonableness of his sentence but did not object to the conditions
of his supervised release. This appeal followed.
                               II. DISCUSSION
      Under 18 U.S.C. § 3583(d), a district court may order, as a “condition of
supervised release, . . . any condition set forth as a discretionary condition of
probation in [18 U.S.C. § 3563(b)].” One such discretionary condition is a term
of intermittent confinement pursuant to § 3563(b)(10), which requires a
defendant to “remain in the custody of the Bureau of Prisons [(“BOP”)] during
nights, weekends, or other intervals of time, totaling no more than the lesser
of one year or the term of imprisonment authorized for the offense, during the
first year of the term of probation or supervised release.” 18 U.S.C.
§ 3563(b)(10). However, a term of intermittent confinement “may be ‘imposed
only for a violation of a condition of supervised release in accordance with [the
rules governing the modification or revocation of supervised release] and only
when facilities are available.’” United States v. Arciniega-Rodriguez, 581 F.
App’x 419, 420 (5th Cir. 2014) (per curiam) (alteration in original) (quoting 18
U.S.C. § 3583(d)(3)); see also U.S.S.G. § 5F1.8.
      Magana argues that the district court committed reversible plain error
because it “ordered that the first year of Magana’s supervised release be served
in some form of ‘intermittent confinement’” even if no “supervised-release
                                        2
    Case: 15-50986     Document: 00513675683     Page: 3   Date Filed: 09/13/2016



                                  No. 15-50986
violation was alleged and adjudicated” as required under § 3583(d)(3). The
Government counters that Magana’s appeal is not ripe for review because,
contrary to Magana’s assertions, any term of intermittent confinement is in
fact contingent upon “a future allegation that [Magana] committed a violation
of supervised release during the first year of his term” of supervised release.
      Because Magana did not object at sentencing to the conditions of his
supervised release, plain error review would apply to the substantive merits of
his challenge to those conditions on appeal. United States v. Scott, 821 F.3d
562, 570 (5th Cir. 2016). However, “[r]ipeness is a component of subject matter
jurisdiction, because a court has no power to decide disputes that are not yet
justiciable.” Lopez v. City of Houston, 617 F.3d 336, 341 (5th Cir. 2010).
Accordingly, whether Magana’s claim is ripe is a jurisdictional issue we review
de novo. See United States v. Isgar, 739 F.3d 829, 838 (5th Cir. 2014).
      “[T]he ripeness inquiry focuses on whether an injury that has not yet
occurred is sufficiently likely to happen to justify judicial intervention.”
Pearson v. Holder, 624 F.3d 682, 684 (5th Cir. 2010) (alteration in original)
(quoting Chevron U.S.A., Inc. v. Traillour Oil Co., 987 F.2d 1138, 1153 (5th
Cir. 1993)). “A claim is not ripe for review if ‘it rests upon contingent future
events that may not occur as anticipated, or indeed may not occur at all.’”
United States v. Carmichael, 343 F.3d 756, 761 (5th Cir. 2003) (quoting Texas
v. United States, 523 U.S. 296, 300 (1998)).
      Our case law has distinguished between ripe and unripe challenges to
special conditions of supervised release where, as here, a defendant has not yet
begun his or her term of supervised release. If the strictures of a condition are
patently mandatory—i.e., their imposition is “not contingent on future
events”—then a defendant’s challenge to that condition is ripe for review on
appeal. Id.; see also, e.g., United States v. Paul, 274 F.3d 155, 164–66 (5th Cir.
2001) (reviewing a challenge to the legality of a special condition “requiring
                                        3
    Case: 15-50986        Document: 00513675683   Page: 4    Date Filed: 09/13/2016



                                   No. 15-50986
[the defendant] to avoid contact” with minors). An appeal, however, is not ripe
if it is “a matter of conjecture” whether the requirements of the condition will
take effect. Carmichael, 343 F.3d at 761–62; see also, e.g., United States v. Ellis,
720 F.3d 220, 227 (5th Cir. 2013) (per curiam) (holding a challenge to a special
condition that included “the possibility” that the defendant “might be required
to submit to psychotropic medication and psycho-physiological testing” was
“not ripe for review”).
      Our decision in Carmichael is instructive. In that case, the district court
imposed a “mandatory condition of supervised release” that “required that . . .
the probation officer be allowed to collect DNA” from the defendants pursuant
to the DNA Analysis Backlog Elimination Act of 2000. Carmichael, 343 F.3d
at 757, 759. We held that the defendants’ constitutional challenge to this
special condition was not ripe because the defendants would only “be required
to submit to sampling during supervised release” if the BOP “fail[ed] to execute
its statutorily-imposed duty to collect the sample” while they were imprisoned.
Id. at 761. As we explained, “the possibility of DNA sampling during
supervised release [was] speculative” given that it would require the BOP to
“flout[] multiple layers of legal obligations placed upon it.” Id.
      Here, we hold that Magana’s appeal is not ripe for review because the
record does not support his argument that he will automatically be subject to
a term of intermittent confinement upon release. Rather, as the district court
pronounced at sentencing, Magana would “submit” to a term of intermittent




                                         4
     Case: 15-50986       Document: 00513675683          Page: 5     Date Filed: 09/13/2016



                                       No. 15-50986
confinement only “at the direction of the Court pursuant to law.” 1 The law,
however, includes the aforementioned limitation, 18 U.S.C. § 3583(d), that any
term of intermittent confinement be “imposed only for a violation of a condition
of supervised release.” Section 3583(d) also incorporates the requirements of
18 U.S.C. § 3583(e)(2), which provide that any modification of the terms of
supervised release comply with the Federal Rules of Criminal Procedure. 18
U.S.C. § 3583(d), (e)(2). Thus, Magana’s challenge is not ripe for review because
it is based upon speculation that the district court, or the BOP, will disregard
the “legal obligations placed upon it.” Carmichael, 343 F.3d at 761.
       Further, we have previously rejected the argument that the district court
erred by imposing “a term of intermittent confinement as a ‘self-effectuating’
condition” of a defendant’s supervised release. Arciniega-Rodriguez, 581 F.
App’x at 420; accord United States v. Figueroa-Munoz, 592 F. App’x 336, 336
(5th Cir. 2015) (per curiam). In these cases, we held that “[t]he possibility that
the [BOP] will misinterpret” a district court’s sentence “as requiring [the
defendant] to serve a term of intermittent confinement immediately upon
beginning his term of supervised release is entirely speculative and remote.”
Arciniega-Rodriguez, 581 F. App’x at 420–21; accord Figueroa-Munoz, 592 F.




       1  In his reply brief, Magana argues that the imposition of intermittent confinement is
not contingent on future events because the “written judgment states that Magana will be
intermittently confined during the first year of his supervised release.” To the extent Magana
argues that the district court’s written statement varied from its oral pronouncement
regarding his conditions for supervised release, this argument is waived because it was raised
for the first time in his reply brief. See United States v. Heacock, 31 F.3d 249, 259 n.18 (5th
Cir. 1994). Moreover, we disagree with his reading of the written judgment. The written
judgment tracks the district court’s oral statement by providing that Magana would be
subject to intermittent confinement “as directed by the Court.” While the written judgment
does not include the qualifier “pursuant to law” that the district court included orally at
sentencing, this difference in phrasing is immaterial. District courts are “presumed to know
the law and to apply it in making their decisions.” Walton v. Arizona, 497 U.S. 639, 653
(1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002).
                                              5
     Case: 15-50986      Document: 00513675683         Page: 6    Date Filed: 09/13/2016



                                      No. 15-50986
App’x at 337. 2 This reasoning applies with equal force in this case, as Magana’s
argument relies on the unfounded premise that the district court, or the BOP,
will act unlawfully in the future.
                                 III. CONCLUSION
       Accordingly, because Magana’s appeal is not yet ripe for review, we
DISMISS for lack of jurisdiction.




       2Arciniega-Rodriguez cited to our decision in United States v. Hatton, 539 F. App’x
639 (5th Cir. 2013) (per curiam), which, in turn, relied upon Carmichael. See Hatton, 539 F.
App’x at 639.
                                             6
