     Case: 19-10360   Document: 00515419982        Page: 1   Date Filed: 05/18/2020




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


                                    No. 19-10360                         FILED
                                                                     May 18, 2020
                                                                    Lyle W. Cayce
UNITED STATES OF AMERICA,                                                Clerk

             Plaintiff - Appellee

v.

WILLIAM JAMES PAYTON,

             Defendant - Appellant




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


Before SOUTHWICK, COSTA, and DUNCAN, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      The defendant pled guilty to interference with commerce by robbery and
to brandishing a firearm during a crime of violence in violation of 18 U.S.C.
§§ 2, 1951(a), and 924(c)(1)(A)(ii). On appeal, the defendant challenges as
substantively unreasonable the imposition of a standard condition of
supervised release requiring him to “permit a probation officer to visit at any
time at home or elsewhere and permit confiscation of any contraband observed
in plain view by the probation officer.” We AFFIRM.
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                                 No. 19-10360
               FACTUAL AND PROCEDURAL BACKGROUND
        In March 2018, William James Payton and two other men robbed a
Sprint store in Fort Worth, Texas. During the robbery, Payton pointed a .380-
caliber handgun at individuals inside the store. The robbers obtained $94 cash
and 41 cell phones, but police soon apprehended them.
        Payton pled guilty to interference with commerce by robbery and to
brandishing a firearm during a crime of violence. Following his guilty plea, a
probation officer prepared a presentence investigation report (“PSR”). The
PSR calculated a total offense level of 22. The probation officer calculated six
points of criminal history based on Payton’s prior offenses, including: multiple
convictions for possession of marijuana, theft of merchandise worth $499,
attempted burglary, carrying a concealed weapon, resisting arrest, making
terrorist threats, and an unlawful transaction with a minor.          The PSR
identified multiple probation revocations and multiple pending convictions for
Payton, one of which resulted in the revocation of his pretrial release in this
case.   Payton’s six criminal history points placed him in criminal history
category III. The resulting advisory sentencing range was 51 to 63 months of
imprisonment for the robbery conviction and 84 months for the firearm
conviction.
        The district court sentenced Payton to 135 months of imprisonment.
This sentence included 51 months for the robbery conviction and 84 months for
the firearm conviction. The district court further imposed a three-year term of
supervised release and ordered Payton to comply with the standard conditions
of supervised release. Payton objected to the reasonableness of the standard
condition permitting a probation officer to visit him at any time at home or
elsewhere and permitting confiscation of any contraband the probation officer
observes in plain sight. The district court overruled the objection. Payton
timely appealed.
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                                  No. 19-10360
                                 DISCUSSION
I.     Ripeness
       The Government argues that Payton’s claim is not ripe. Ripeness is a
jurisdictional issue that we review de novo. Choice Inc. of Texas v. Greenstein,
691 F.3d 710, 714 (5th Cir. 2012). “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)
(quotation marks omitted). “A court should dismiss a case for a lack of ripeness
when the case is abstract or hypothetical.” Greenstein, 691 F.3d at 715.
       We have previously held that “[i]f 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.”
United States v. Magana, 837 F.3d 457, 459 (5th Cir. 2016) (quotation marks
omitted). The relevant condition here requires Payton to “permit a probation
officer to visit [him] at any time at home or elsewhere and permit confiscation
of any contraband observed in plain view by the probation officer.”           The
application of this condition does not involve speculation because upon the
beginning of supervised release it will immediately be in effect. The challenge
is ripe for judicial review.


II.    Substantive reasonableness of the condition of probation
       Because Payton objected to the imposition of the condition, we review his
substantive reasonableness challenge for an abuse of discretion. United States
v. Ellis, 720 F.3d 220, 224 (5th Cir. 2013). “District courts have wide discretion
in imposing conditions of supervised release.” United States v. Dean, 940 F.3d
888, 891 (5th Cir. 2019). Indeed, a district court “may impose any condition of
supervised release it considers to be appropriate” if the condition comports
with the requirements of 18 U.S.C. § 3583(d). See United States v. Weatherton,
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                                  No. 19-10360
567 F.3d 149, 153 (5th Cir. 2009). Accordingly, a condition of supervised
release must reasonably relate to one of four factors:
      (1) the nature and characteristics of the offense and the history
      and characteristics of the defendant, (2) the deterrence of criminal
      conduct, (3) the protection of the public from further crimes of the
      defendant, and (4) the provision of needed educational or
      vocational training, medical care, or other correctional treatment
      to the defendant.
Id. (citing 18 U.S.C. §§ 3583(d)(1), 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)).
Additionally, the condition must be narrowly tailored such that it does not
involve a “greater deprivation of liberty than is reasonably necessary to
advance deterrence, protect the public from the defendant, and advance the
defendant’s correctional needs.”      Id. (citing §§ 3583(d)(2), 3553(a)(2)(B),
(a)(2)(C), (a)(2)(D)).
      Payton does not argue that the standard condition is not reasonably
related to these statutory factors. Instead, he argues the standard condition is
unreasonably broad — and therefore not narrowly tailored — for two reasons.
His argument is that the phrase “at any time” improperly provides no temporal
limitation on when a probation officer may conduct a visit, and, second, the “at
home or elsewhere” language provides no limitation on the location of any
meeting. Payton contends this condition requires him “to be available to meet
with his probation officer at any place and at any time, day or night.” Payton
relies on Seventh Circuit cases that remanded for resentencing sentences
involving nearly identical conditions of supervised release as the standard-
visitation condition. See United States v. Henry, 813 F.3d 681 (7th Cir. 2016);
United States v. Poulin, 809 F.3d 924 (7th Cir. 2016); United States v. Kappes,
782 F.3d 828 (7th Cir. 2015); United States v. Thompson, 777 F.3d 386 (7th
Cir. 2015). But see United States v. Muñoz, 812 F.3d 809, 821–22 (10th Cir.
2016) (upholding the imposition of a nearly identical standard condition of


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                                 No. 19-10360
supervised release); United States v. Clarke, 428 F. App’x 712, 713 (9th Cir.
2011) (same).
      Our analysis begins with the statutory authority for the imposition of
supervised release, which is found in 18 U.S.C. § 3583. In turn, Section 3583(d)
incorporates as possible conditions of supervised release the conditions of
probation listed in Section 3563. The list includes 23 discretionary conditions
that sentencing courts may impose. § 3563(b). One of the suggested conditions
is that the defendant “permit a probation officer to visit him at his home or
elsewhere as specified by the court.” § 3563(b)(16).
      The discretionary conditions listed in Section 3563 are similar to the 13
standard conditions recommended in the Sentencing Guidelines.            Indeed,
many of these recommended conditions are identical to or expand on some of
the discretionary conditions listed in Section 3563.         Compare U.S.S.G.
§ 5D1.3(c), with 18 U.S.C. § 3563(b). The Guidelines recommend as a standard
condition that “[t]he defendant shall allow the probation officer to visit the
defendant at any time at his or her home or elsewhere, and the defendant shall
permit the probation officer to take any items prohibited by the conditions of
the defendant’s supervision that he or she observes in plain view.” U.S.S.G.
§ 5D1.3(c)(6).
      In 2016, as part of its “multi-year review of sentencing practices relating
to federal probation and supervised release,” the United States Sentencing
Commission evaluated the recommended standard conditions and left intact
the “any time” and “home or elsewhere” language of the standard condition
regarding probation officer visits. See U.S. SENTENCING GUIDELINES MANUAL,
supp. to app. C, at 168; 162 (U.S. SENTENCING COMM’N 2016). In its Reason for
Amendment, the Sentencing Commission rejected the Seventh Circuit’s
criticism of this condition; the Commission concluded that “in some
circumstance[s], adequate supervision of defendants may require probation
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                                 No. 19-10360
officers to have the flexibility to visit defendants at off-hours, at their
workplaces, and without advance notice to the supervisee.” Id. at 171.
      This standard condition as recommended by the Guidelines has been
incorporated into Administrative Office of the United States Courts Form
245B, “Judgment in a Criminal Case.” See ADMIN. OFFICE OF THE U.S. COURTS,
AO 245B, JUDGEMENT IN A CRIMINAL CASE (2019). That form is substantially
similar to the visitation condition imposed here.
      The Sentencing Commission reasonably concluded that adequate
supervision may at times require the imposition of this standard condition. As
to Payton, the district court implicitly found that adequate supervision
required this standard-visitation condition. The condition, as imposed here,
reasonably relates to the statutory factors set forth in Section 3553(a), a point
Payton does not contest.     Payton’s argument that the standard-visitation
condition is not narrowly tailored focuses on only part of the district court’s
consideration in imposing the condition. The condition of supervised release
must be narrowly tailored such that it does not involve a “greater deprivation
of liberty than is reasonably necessary for the purposes set forth in section
3553(a)(2)(B), (a)(2)(C), and (a)(2)(D).”   § 3583(d)(2).   The liberty rights of
parolees, though, are limited compared to an average citizen. See United
States v. Winding, 817 F.3d 910, 916 (5th Cir. 2016).
      In light of Payton’s violent conduct, prior drug convictions, multiple
probation violations, and failure to abide by the terms of pretrial release, the
district court did not abuse its discretion by imposing this condition.
      AFFIRMED.




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