    Case: 18-41134   Document: 00515384693     Page: 1   Date Filed: 04/16/2020




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

                                                                      FILED
                                No. 18-41134                      April 16, 2020
                                                                 Lyle W. Cayce
                                                                      Clerk


UNITED STATES OF AMERICA,

                                         Plaintiff–Appellee,

versus

ROLANDO HINOJOSA,

                                         Defendant–Appellant.




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




Before SMITH, GRAVES, and HO, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Rolando Hinojosa was convicted of money laundering and two major
drug offenses involving multiple kilograms of heroin and cocaine. The district
court sentenced him to, among other things, a term of supervised release
(“SR”). But the release comes with a string attached: As a special condition,
Hinojosa must submit to substance-abuse testing, and he cannot tamper with
the testing methods. Hinojosa informs us that there was no good reason to
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                                No. 18-41134
require testing—and that the anti-tampering rule must be eliminated. We
disagree and affirm.

                                      I.
      The court sentenced Hinojosa to a lengthy term in prison, followed by
SR. At sentencing, the court imposed the “[s]tandard terms and conditions of
[SR], along with substance abuse testing” (emphasis added). Hinojosa did not
object. The written judgment stated the condition as follows:
      You must submit to substance-abuse testing to determine if you
      have used a prohibited substance, and you must pay the costs of
      the testing if financially able. You may not attempt to obstruct or
      tamper with the testing methods.

                                      A.
      Hinojosa contends that the oral pronouncement and written judgment
conflict, because the former said nothing about tampering. At sentencing, Hin-
ojosa necessarily lacked an opportunity to object on that basis. Accordingly,
we review for abuse of discretion. See United States v. Warden, 291 F.3d 363,
365 n.1 (5th Cir. 2002).

      If the oral pronouncement and written judgment conflict, the former con-
trols. United States v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000).
But not all differences are conflicts. “The key determination is whether the
discrepancy . . . is a conflict or merely an ambiguity that can be resolved by
reviewing the rest of the record.” United States v. Mireles, 471 F.3d 551, 558
(5th Cir. 2006) (emphases added). If the written judgment broadens the orally
pronounced requirements, a conflict exists. Id.

      There is no conflict. The district court mentioned the requirement of
testing at sentencing—it just failed to note that Hinojosa couldn’t tamper with
the testing apparatus. Prohibiting Hinojosa from tampering cannot somehow
“conflict” with a requirement that he be tested. That prohibition is a logical
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                                       No. 18-41134
piece of any substance-abuse test. “The written judgment simply clarified the
meaning of [the condition] by specifying what the [testing] was to entail.”
United States v. Truscello, 168 F.3d 61, 63 (2d Cir. 1999).

        Our caselaw lines up in support. In Warden, 291 F.3d at 364, for exam-
ple, the court orally imposed a condition that the defendant participate in
treatment and counseling but did not state who would pay for it. Yet the writ-
ten judgment placed the cost on the defendant. Id. We affirmed, finding only
an ambiguity. Id. at 365. “[T]he requirement that [the defendant] bear the
costs of the ordered treatments [was] clearly consistent with the district court’s
intent that he attend drug treatment, sex offender, and anger management
counseling[.]” 1 The same holds here: The ban on tampering is “clearly consis-
tent” with the testing requirement.

        Hinojosa suggests it’s problematic that the condition was “not written
exactly the same way” as the condition articulated in U.S. SENTENCING GUIDE-
LINES   MANUAL (“U.S.S.G.”) § 5D1.3(d)(4). 2 But he does not cite any authority
that requires regurgitation, because there is none. Indeed, that subsection of
the Guidelines is a policy statement, so the condition needed only to be “con-
sistent with” it—not its carbon copy. 18 U.S.C. § 3583(d)(3).




        1Warden, 291 F.3d at 365; see also Mireles, 471 F.3d at 558–59 (affirming, even though
the written judgment differed in requiring the defendant to allow his vehicle to be searched
regardless of whether he was its driver and of whether it was being driven on a highway);
United States v. Vasquez-Puente, 922 F.3d 700, 705 (5th Cir. 2019) (affirming written judg-
ment’s imposition of a special condition, unmentioned at sentencing, that the defendant sur-
render to immigration authorities until proceedings were finished, because it effected the
court’s intent that the defendant “be deported after serving his prison term”).
        2That provision states, inter alia, that “[i]f the court has reason to believe that the
defendant is an abuser of narcotics” or “other controlled substances,” it may impose “a condi-
tion requiring the defendant to participate in a program approved by the United States Pro-
bation Office for substance abuse, which program may include testing to determine whether
the defendant has reverted to the use of drugs or alcohol.” U.S.S.G. § 5D1.3(d)(4).
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                                       No. 18-41134
                                              B.
       Hinojosa also urges that it is unreasonable that he should have to submit
to substance-abuse testing. He points out that his marihuana use is decades
old, and he downplays the finding of the presentence investigation report that
he used cocaine about two years before his arrest.

       We review only for plain error. The court orally imposed the testing con-
dition, which gave Hinojosa every opportunity to object to its propriety. He
didn’t take the bait. 3 “Naturally, the first prong of plain-error analysis is the
requirement of an error.” United States v. Sanders, 952 F.3d 263, 282 (5th Cir.
2020). There is none.

       “A district court has wide discretion in imposing terms and conditions of
SR.” 4 But three requirements must be met to impose a special condition. See
18 U.S.C. § 3583(d)(1)–(3).
       First, the condition must be reasonably related to one of four fac-
       tors in § 3553(a): (1) the nature and circumstances of the offense
       and the history and characteristics of the defendant; (2) the ade-
       quate deterrence of criminal conduct; (3) the protection of the pub-
       lic from further crimes of the defendant; and (4) the provision of
       needed educational or vocational training, medical care, or other
       correctional treatment. Second, the condition cannot impose any
       greater deprivation of liberty than is reasonably necessary to ad-
       vance deterrence, protect the public from the defendant, and ad-
       vance the defendant’s correctional needs. Third, the condition
       must be consistent with any pertinent policy statements issued by

       3  See United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009) (“[B]ecause [the
defendant] did not object to the imposition of the special conditions in the district court, we
review for plain error only.”). Hinojosa disagrees that plain error applies, noting that the
district court asked him whether he had objections to other aspects of his sentence “but decid-
edly not the special condition” (emphasis removed). But, in a familiar theme, he fails to cite
any authority requiring the court to inquire. There is none. Hinojosa has the burden to
object. See, e.g., United States v. Johnson, 943 F.3d 735, 737 (5th Cir. 2019). The court does
not have to ask whether he objects.
       4 United States v. Hathorn, 920 F.3d 982, 984 (5th Cir.) (brackets removed), cert.
denied, 140 S. Ct. 250 (2019).
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       the Sentencing Commission.
Hathorn, 920 F.3d at 984 (cleaned up); see 18 U.S.C. § 3583(d)(1)–(3). District
courts should make factual findings as to special conditions, but even absent
them, we affirm if the rationale “can be inferred after an examination of the
record.” 5

       Here the court’s reasons are easily intuited. “The court can require parti-
cipation in a substance abuse program if it has reason to believe that the
defendant abuses controlled substances.” United States v. Cothran, 302 F.3d
279, 290 (5th Cir. 2002) (citing U.S.S.G. § 5D1.3(d)(4)). The court had “reason
to believe” that Hinojosa does so—and it imposed a less onerous requirement
of testing, not a treatment program as in Cothran. Indeed, just two years
before his arrest, Hinojosa used cocaine; he’d used marihuana earlier in life;
and he was being sentenced for offenses that involved large quantities of drugs.
We affirmed on similar facts in United States v. Torres-Pindan, 400 F. App’x
839, 841 (5th Cir. 2010) (per curiam).

       The testing condition is therefore related to, among other things, “the
nature and circumstances of [Hinojosa’s] offense,” his personal “history and
characteristics,” and “the need . . . to afford adequate deterrence.” 18 U.S.C.
§ 3553(a). There is no indication that the condition deprives Hinojosa of his
liberty more than necessary, and, for reasons already described, the condition
is consistent with the relevant policy statements. See id. § 3583(d)(1)–(3).
Accordingly, “[t]here is no error, plain or otherwise.” 6

       AFFIRMED.


       5 United States v. Caravayo, 809 F.3d 269, 275 (5th Cir. 2015) (per curiam); see also,
e.g., United States v. Bree, 927 F.3d 856, 860 (5th Cir. 2019) (“[W]e may independently review
the record for evidence that could justify a special condition.”).
       United States v. Kearby, 943 F.3d 969, 975 (5th Cir. 2019), cert. denied, No. 19-7735,
       6

2020 WL 1496732 (U.S. Mar. 30, 2020).
                                              5
