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

                                               FILED
                                                                        December 23, 2009

                                       No. 08-50869                    Charles R. Fulbruge III
                                                                               Clerk

UNITED STATES OF AMERICA,

                                                  Plaintiff–Appellee,
v.

VALENTINA BALDERAS,

                                                  Defendant–Appellant.




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 2:02-CR-113-2


Before HIGGINBOTHAM, STEWART, and OWEN, Circuit Judges.
PER CURIAM:*
       Valentina Balderas appeals from her 18-month sentence on revocation of
probation and the imposition of a discretionary condition of supervised release
prohibiting her from living with her husband. We affirm.


                                              I
       Valentina Balderas pleaded guilty to conspiracy to harbor aliens and was
sentenced in 2002 to five years of probation. In 2006, she was convicted in North


         *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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
                                  No. 08-50869

Dakota of driving while her license was suspended and driving without liability
insurance. As a result of these two state convictions, the district court modified
Balderas’s conditions of supervision to include the completion of 100 hours of
community service.
      In 2007, Balderas’s probation officer petitioned the district court to issue
a warrant for Balderas’s arrest because she had failed to complete her
community service. Balderas was arrested, appeared before the district court,
and was subsequently released on a $10,000 bond. A revocation hearing was
scheduled for April 14, 2008.
      Prior to that hearing, Balderas’s probation officer filed an amended
petition alleging an additional violation of her conditions of supervision. The
petition noted that Balderas had been indicted for conspiracy to possess
marijuana with intent to distribute and for possession of marijuana with intent
to distribute after she and her husband were arrested with marijuana in a
vehicle in which both were traveling. Balderas’s husband pled guilty to and was
convicted of possessing marijuana with intent to distribute and was sentenced
to a term of imprisonment. The Government subsequently notified the district
court that the indictment against Balderas was being dismissed and that the
Government would be proceeding to revoke her probation based only on
Balderas’s failure to complete 100 hours of community service.
      At the revocation hearing, Balderas apologized for failing to complete her
community service but contended that her husband had been abusive and had
prevented her from performing the required hours of community service. She
also stated that, because of this family violence, she lost custody of her
granddaughter. Balderas and her counsel informed the court that she had been
shot and stabbed by her husband during incidents in the past. The district court
expressed disbelief that spousal abuse was the actual cause of Balderas’s failure
to complete community service, and the court revoked her probation.           The

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                                          No. 08-50869

district court sentenced Balderas to 18 months’ imprisonment, to be followed by
a three-year term of supervised release. As a special condition of her supervised
release, the district court ordered Balderas not to live with her husband. The
district court justified the special condition by citing Balderas’s and her
husband’s prior criminal records, the evidence of spousal abuse, and the court’s
belief that, at the time Balderas and her husband were arrested for possession
with intent to distribute marijuana, she was aware that her husband possessed
and intended to distribute the illegal drugs.
       Balderas timely appealed. We have jurisdiction under 18 U.S.C. § 3742
and 28 U.S.C. § 1291.


                                                II
       The district court’s order is reviewed for plain error because, as Balderas
acknowledges, she failed to object to her sentence before the district court.1 We
will disturb a district court’s determination only when: (1) there was an error;
(2) the error was clear and obvious; and (3) the error affected the defendant’s
substantial rights.2        Where such error is demonstrated, this court has the
discretion to correct the error, but only if it “seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”3
       In imposing a sentence upon revocation of supervised release, a district
court is required to consider the factors set forth in 18 U.S.C. § 3553(a) and the
advisory policy statements found in Chapter Seven of the United States



       1
           United States v. Peltier, 505 F.3d 389, 391-92 (5th Cir. 2007).
       2
         Puckett v. United States, 129 S. Ct. 1423, 1429 (2009); see also United States v.
Gonzales, 484 F.3d 712, 714 (5th Cir. 2007) (“Under plain-error review, we first inquire
whether the district court’s imposition of the enhancement was erroneous and, if so, whether
the error was plain (i.e., clear or obvious).”).
       3
           Puckett, 129 S. Ct. at 1429.

                                                3
                                         No. 08-50869

Sentencing Guidelines.4              The sentencing ranges are based on both the
defendant’s criminal history and the severity of the defendant’s supervised-
release violation.5 A district court may revoke its previous sentence and impose
a term of imprisonment,6 but it may not exceed the statutory maximum term of
imprisonment allowed for the revocation sentence, as set forth in § 3583(e)(3).
Because Balderas’s original offense of conspiracy to harbor illegal aliens was a
Class C felony, the maximum sentence that could be imposed on revocation was
24 months.7 Balderas had a criminal history category of III, and the supervised
release violation was a Grade C violation,8 resulting in an advisory guidelines
range of 5 to 11 months of imprisonment.9
       Balderas argues that her above-guidelines, 18-month sentence is
unreasonable because the district court impermissibly considered the possession
of marijuana charge that was later dismissed by the Government. She asserts
that the alleged drug offense was improperly used because it was never
established by a preponderance of the evidence that she was guilty of the offense.
       The record does not support Balderas’s argument that the district court
impermissibly considered the dismissed marijuana charges in sentencing her.


       4
          See United States v. Mathena, 23 F.3d 87, 90 (5th Cir. 1994) (observing that when
imposing a sentence following revocation, the district court is directed to consider the factors
enumerated in 18 U.S.C. § 3553(a), including the nonbinding policy statements of the
Sentencing Guidelines); United States v. Teran, 98 F.3d 831, 836 (5th Cir. 1996); U.S.S.G. ch.
7, pt. A, introductory cmt.
       5
           U.S.S.G. §§ 7B1.4(a), 7B1.1(b) (2009).
       6
           18 U.S.C. § 3583(e).
       7
         8 U.S.C. § 1324(a)(1)(A)(v)(I) & (B)(i) (providing that the statutory maximum sentence
is 10 years); 18 U.S.C. § 3559(a)(3) (stating that an offense with maximum prison term of less
than 25 years but 10 or more years is a Class C felony); id. § 3583(e)(3) (stating that maximum
prison term upon revocation for a Class C felony is not more than 24-months’ imprisonment).
       8
           U.S.S.G. § 7B1.1(a)(3).
       9
           U.S.S.G. § 7B1.4(a).

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                                  No. 08-50869

While the district court did discuss the dismissed charges, it was only in
connection with Balderas’s credibility. The record reflects that the district court
did not find credible Balderas’s statement at the revocation hearing that “it
wasn’t [her] fault” that she failed to complete her community service hours but
was instead her abusive husband’s fault. In discussing Balderas’s credibility,
the district court cited the arrest for possession of marijuana and the fact that
the court did not believe that Balderas was unaware of the drugs hidden in the
truck being driven by her husband at the time of the arrest. In determining the
length of Balderas’s sentence, the court stated that it considered the fact that
Balderas had “been in and out of prison since 1977” for various crimes and had
been given many opportunities to avoid imprisonment, including the imposition
of only supervised release following her conviction for conspiracy to harbor
illegal aliens.
      The district court expressly stated when rendering the sentence that it had
considered the policy statements and that an 18-month sentence was a more
appropriate sentence than the advisory guidelines range.          This 18-month
sentence is within the statutory maximum, and although it exceeded the
recommended guidelines range, it is not unreasonable or plainly unreasonable.


                                       III
      Balderas also alleges that the condition of her supervised release
prohibiting her from living with her husband is an unconstitutional restraint on
her freedom to associate and maintain certain intimate human relationships and
is a greater deprivation of liberty than is reasonably necessary. In addition to
these challenges, Balderas argues that the district court’s special condition of
supervised release is tantamount to divorce and would essentially render her
homeless. Because Balderas raised these arguments for the first time on appeal,



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                                         No. 08-50869

we review for plain error.10
        A court may impose conditions on a defendant’s term of supervised
release. In addition to certain mandatory conditions, 18 U.S.C. § 3583(d) (2008)
provides that a court may impose “any condition set forth as a discretionary
condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through
(b)(20), and any other condition it considers to be appropriate.”
       Although a district court has broad discretion in imposing conditions on
supervised release, such conditions must be reasonably related to the factors set
forth in § 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D).11 The statutory factors
include:
       (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 [training], medical care, or other correctional
       treatment in the most effective manner.12

       Even if the condition is reasonably related to the above factors, the court
may not impose conditions that “involve a greater deprivation of liberty than is
reasonably necessary to achieve the latter three statutory goals.” 13 Additionally,
the conditions must be “consistent with any pertinent policy statements issued



       10
            United States v. Calverley, 37 F.3d 160, 162-64 (5th Cir. 1994).
       11
            United States v. Ferguson, 369 F.3d 847, 852 (5th Cir. 2004).
       12
          Id. (internal quotation marks and citations omitted) (brackets in opinion). Although
these factors are connected by the “and” conjunction, see 18 U.S.C. § 3583(d)(1); U.S.S.G. §
5D1.3(b)(1), “the critical test is whether the challenged condition is sufficiently related to one
or more of the permissible goals of supervised release.” United States v. York, 357 F.3d 14, 20
(1st Cir. 2004) (quoting United States v. Brown, 235 F.3d 2, 6 (1st Cir. 2000)) (emphasis in
York); see also United States v. Barajas, 331 F.3d 1141, 1146 (10th Cir. 2003) (noting that
every circuit to have decided the issue has adopted this interpretation notwithstanding the
conjunction “and”).
       13
            Ferguson, 369 F.3d at 852 (internal quotation marks and citation omitted).

                                                6
                                         No. 08-50869

by the Sentencing Commission pursuant to 28 U.S.C. 994(a).”14
       “It is axiomatic that the infringement of constitutional liberties occurs
concomitantly with conviction of a crime, and many conditions of supervised
release therefore permissibly infringe liberty interests.”15                   “Virtually all
conditions of supervised release restrict a defendant’s liberty.” 16                    Special
conditions that restrict constitutional rights are upheld if they are narrowly
tailored and are directly related to deterring the defendant and protecting the
public.17 Accordingly, “the district court may impose a condition restricting the
defendant’s intimate associations that involves no greater deprivation of liberty
than is reasonably necessary to achieve the identified purposes of supervised
release.”18
       The district court imposed the following condition on Balderas’s
supervised release: “If defendant is abused by anyone, she is to report it to the
police and upon her release the defendant will NOT live with her husband.” In
this case, the district court implicitly, if not explicitly, concluded that Balderas’s


       14
            Id. (internal quotation marks and citation omitted).
       15
          United States v. Woods, 547 F.3d 515, 519 (5th Cir. 2008) (internal citations omitted);
see also 18 U.S.C. § 3583(d) (listing standard conditions that inherently infringe a defendant’s
liberty and requiring that other conditions involve “no greater deprivation of liberty than is
reasonably necessary”); Griffin v. Wisconsin, 483 U.S. 868, 874 (1987) (citing Morrissey v.
Brewer, 408 U.S. 471, 480 (1972)); United States v. Stafford, 983 F.2d 25, 28 (5th Cir. 1993)
(holding that a condition is “not necessarily invalidated merely because it impairs” enjoyment
of constitutional rights).
       16
            United States v. Brown, 235 F.3d 2, 7 (1st Cir. 2000).
       17
         United States v. Crandon, 173 F.3d 122, 128 (3d Cir. 1999); see also United States v.
Knight, 86 F. App’x 2, 4 (5th Cir. 2003) (unpublished) (“Conditions of supervised release must
be reasonably related to the history and characteristics of the defendant and must impose no
greater deprivation of liberty than reasonably necessary to deter criminal conduct and protect
the public.”); United States v. Bortels, 962 F.2d 558, 560 (6th Cir. 1992) (finding that “where
a condition of supervised release is reasonably related to the dual goals of probation, the
rehabilitation of the defendant and the protection of the public, it must be upheld”).
       18
            Woods, 547 F.3d at 518.

                                                7
                                       No. 08-50869

cohabitation with her husband contributed to her criminal conduct and that she
was in danger of abuse from her husband.
       We cannot say, in light of existing precedent, that the district court plainly
erred in prohibiting Balderas from living with her husband during her
supervised release.         Under similar circumstances, courts of appeals have
affirmed discretionary conditions restricting a defendant’s intimate associations
when the district court appropriately defined the prohibited association and
articulated a direct connection between the condition and a sentencing goal.19
       In United States v. Bortels, the district court imposed a condition of
supervised release prohibiting the defendant from associating with her fiancé
because she had endangered the community at large in a high-speed chase to
protect him from arrest.20 Prior to sentencing, the district court observed that
the defendant would not have been in jail but for her association with her
fiancé.21 The district court reasoned that her rehabilitation would be aided if she


       19
           See e.g., United States v. Smith, 436 F.3d 307, 311-12 (1st Cir. 2006) (affirming
condition directing defendant to refrain from seeing minor daughter because, inter alia, it
served to protect public safety from defendant’s agitated entries into schools in search of his
daughter); United States v. Rodriguez, 178 F. App’x 152, 158-59 (3d Cir. 2006) (unpublished)
(affirming condition prohibiting defendant from having contact with her husband because
district court found that defendant committed crimes at her husband’s behest); United States
v. Brandenburg, 157 F. App’x 875, 878-80 (6th Cir. 2005) (unpublished) (affirming condition
prohibiting defendant from cohabitating with any female because defendant “has a history of
abusing women with whom he lives” and narrower, previously imposed condition proved
“inadequate to prevent the defendant from committing domestic violence”); Bortels, 962 F.2d
at 559-60 (affirming condition that defendant not associate with her fiancé because defendant
“would not be in jail but for her association with [him]”; “her rehabilitation would be aided if
she avoided future contact with [him]”; and she “already risked injuring innocent bystanders
. . . in order to protect [him] from law enforcement authorities”). But see United States v.
Jacques, 321 F.3d 255, 266 (2d Cir. 2003) (suggesting modification of supervised release
condition prohibiting defendant’s association with her common-law husband); United States
v. Smith, 972 F.2d 960, 961-62 (8th Cir. 1992) (vacating condition prohibiting defendant from
fathering additional children other than with his wife unless he demonstrated his ability to
provide support to all his children).
       20
            962 F.2d at 559-60.
       21
            Id. at 559.

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                                         No. 08-50869

avoided future contact with the person who had induced her criminal conduct.22
The Sixth Circuit affirmed the district court, holding that “where a condition of
supervision is reasonably related to the dual goals of probation, the
rehabilitation of the defendant and the protection of the public, it must be
upheld.”23
       Likewise, in United States v. Rodriguez, the district court imposed a
special condition of supervised release prohibiting the defendant from having
contact with her husband absent approval from a probation officer.24 The Third
Circuit affirmed, concluding that the record made clear that the defendant
committed her crimes at the husband’s behest.25 The court held that limiting the
defendant’s contact with her husband was directly related to “the purpose of
reducing his ability to induce her to commit crimes and protecting the public
from further offenses.”26         The court concluded that, because her husband’s
influence led directly to the defendant’s crimes, the special condition limiting
contact between the spouses was appropriate in light of their marital history.27
       Supervisory conditions that implicate fundamental rights such as freedom




       22
            Id. at 559.
       23
            Id. at 560.
       24
            178 F. App’x 152, 158 (3d Cir. 2006) (unpublished).
       25
            Id.
       26
         Id. (citing United States v. Sicher, 239 F.3d 289, 290-92 (3d Cir. 2000) (concluding
release conditions are permissible even where they may impact family relationships)).
       27
         Id.; see also United States v. Crume, 422 F.3d 728, 734 (8th Cir. 2005) (upholding
condition barring defendant possessor of child pornography from seeing own son without prior
approval of probation officer); United States v. Myers, 426 F.3d 117, 125 (2d Cir. 2005) (noting
that condition barring defendant convicted of child pornography from contact with own son
without prior approval acceptable if intended to protect children).

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                                         No. 08-50869

of association are subject to careful review, but they are not invalid per se.28
Rather, the test for ascertaining whether a release condition is permissible
remains the “reasonably related” test described above, qualified, as always, by
the statutory requirement that a condition invade a defendant’s liberty no more
than reasonably necessary in light of the goals the condition is meant to serve.
       Balderas’s history and characteristics are relevant considerations, and it
was within the district court’s discretion to impose reasonable limitations on her
living arrangements to ensure that she avoids recidivism.29 While the record
contains no direct evidence that Balderas committed crimes at her husband’s
behest, we find support in the record for imposition of the requirement that
Balderas be prohibited from living with her husband. The district court implied
that the condition of supervised release was intended to protect Balderas and
help her avoid recidivism—both relevant considerations in the imposition of a
discretionary condition of supervised release.30 Furthermore, the supervised-
release condition prohibiting a defendant from associating with convicted felons
without permission is a standard condition of supervised release.31
       Given the evidence in the record, the district court could reasonably
believe that Balderas’s husband might interfere with her rehabilitation and that
prohibiting the couple’s cohabitation was reasonably related to the purposes of
supervised release.32 As noted, such purposes include the need to deter further
criminal conduct, the need to protect the public from further crimes by the


       28
         See United States v. Roy, 438 F.3d 140, 144 (1st Cir. 2006) (affirming imposition of
special condition restricting defendant’s contact with girlfriend and children after his
conviction for possession of child pornography).
       29
            See United States v. Woods, 547 F.3d 515, 519 (5th Cir. 2008).
       30
            See id.
       31
            U.S.S.G. § 5D1.3(c)(9).
       32
            See United States v. Bortels, 962 F.2d 558, 559 (6th Cir. 1992).

                                                10
                                        No. 08-50869

defendant, and the need to provide the defendant with effective correctional
treatment.33
      We reach no conclusion as to the validity of the special condition under a
standard of review other than plain error.
                                             ***
      The sentence imposed following revocation of supervised release and the
conditions imposed following completion of that sentence are AFFIRMED.




      33
           See 18 U.S.C. § 3583(d)(1); U.S.S.G. § 5D1.3(b).

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