     Case: 13-51002         Document: 00512759877         Page: 1    Date Filed: 09/08/2014




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT


                                       No. 13-51002
                                     Summary Calendar
                                                                            United States Court of Appeals
                                                                                     Fifth Circuit

                                                                                   FILED
                                                                           September 8, 2014
UNITED STATES OF AMERICA,
                                                                                 Lyle W. Cayce
                                                                                      Clerk
                                                    Plaintiff–Appellee,

v.

HUGO ARCINIEGA-RODRIGUEZ,

                                                    Defendant–Appellant.


                     Appeal from the United States District Court
                          for the Western District of Texas
                              USDC No. 3:13-CR-1317-1


Before PRADO, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
       Hugo Arciniega-Rodriguez (Arciniega) pleaded guilty to being a
previously deported alien who was found in the United States without
permission in violation of 8 U.S.C. § 1326. For the first time on appeal, he
argues that the district court plainly erred by imposing a term of intermittent
confinement as a “self-effectuating” condition of his non-reporting supervised
release. Our review is for plain error. 1

       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       1   See United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009).
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                                           No. 13-51002

       Under 18 U.S.C. § 3583(d), a district court may order, as a condition of
supervised release, any condition set forth in 18 U.S.C. § 3563(b), including
that the defendant “remain in the custody of the Bureau of Prisons 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.” 2 However, this
condition 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.” 3
       Under plain-error review, relief is not warranted unless there has been
error, the error is clear or obvious, and the error affected substantial rights. 4
Further, this court should exercise its discretion to correct plain error only if it
“seriously affect[s] the fairness, integrity or public reputation of judicial
proceedings.” 5
       “[L]egal error must be clear or obvious, rather than subject to reasonable
dispute.” 6 Arciniega has not shown that the district court’s written judgment
contained a clear or obvious error. 7 Arciniega also has not shown an error that
affected his substantial rights, or that seriously affects the fairness, integrity,




       2   18 U.S.C. § 3563(b)(10).
       3  18 U.S.C. § 3583(d)(3); see also U.S.S.G. § 5F1.8 (noting that “intermittent
confinement” may be imposed during the first year of supervised release, but “only for a
violation of a condition of supervised release”).
       4   Puckett v. United States, 556 U.S. 129, 135 (2009).
       Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)) (internal quotation
       5

marks omitted).
       6 Id.; see also United States v. Hernandez-De Aza, 536 F. App’x 404, 408 (5th Cir. 2013)
(per curiam).
       7   See Puckett, 556 U.S. at 135.


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                                     No. 13-51002

or public reputation of judicial proceedings. 8 The possibility that the Bureau
of Prisons will misinterpret the district court’s written judgment as requiring
Arciniega to serve a term of intermittent confinement immediately upon
beginning his term of supervised release is entirely speculative and remote. 9
Further, an immigration detainer has been lodged, and Arciniega will be
placed in removal proceedings upon final disposition of the instant offense. He
thus faces no negative consequences from the imposition of the condition of
non-reporting supervised release unless he illegally returns to the United
States. 10
       AFFIRMED.




       8   Id.
       9 Cf. United States v. Hatton, 539 F. App’x 639, 639 (5th Cir. 2013) (per curiam)
(affirming the district court’s denial of an imprisoned defendant’s challenge to supervised
release condition because it was “too speculative”).
       10See, e.g., United States v. Macias-Roman, 539 F. App’x 500, 501-02 (5th Cir. 2013)
(per curiam); United States v. Chavez-Trejo, 533 F. App’x 382, 384-85 (5th Cir. 2013) (per
curiam).


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