     Case: 18-11040      Document: 00515003018         Page: 1    Date Filed: 06/19/2019




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

                                                                                 FILED
                                    No. 18-11040                             June 19, 2019
                                  Summary Calendar
                                                                            Lyle W. Cayce
                                                                                 Clerk
UNITED STATES OF AMERICA,

                                                 Plaintiff-Appellee

v.

DAVID CHIN KWAN,

                                                 Defendant-Appellant


                   Appeal from the United States District Court
                        for the Northern District of Texas
                             USDC No. 4:18-CR-83-1


Before STEWART, Chief Judge, and OWEN and OLDHAM, Circuit Judges.
PER CURIAM: *
       David Chin Kwan appeals his sentence for conspiracy to possess with
intent to distribute marijuana. He contends that the district court imposed an
unconstitutional, standard, supervised release condition requiring him 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.”    He further argues that the district court procedurally erred by


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 18-11040    Document: 00515003018    Page: 2   Date Filed: 06/19/2019


                                No. 18-11040

imposing the condition without explanation. Our review is for plain error only.
See United States v. Cabello, 916 F.3d 543, 544 (5th Cir. 2019); United States
v. Mondragon-Santiago, 564 F.3d 357, 361 (5th Cir. 2009); see also Puckett v.
United States, 556 U.S. 129, 135 (2009) (explaining plain error standard of
review).
      We recently upheld a similar, if not identical, condition on plain error
review, noting that we had not yet addressed the constitutionality or
substantive reasonableness of such a condition or whether a sentencing court
must give reasons for imposing a standard supervised release condition.
Cabello, 916 F.3d at 544. Because our law remains unsettled and the other
federal circuits have reached divergent conclusions, Kwan cannot satisfy the
second prong of the plain error test—that the error be clear or obvious under
existing law. See United States v. McRae, 702 F.3d 806, 833 (5th Cir. 2012);
compare United States v. Kappes, 782 F.3d 828, 844, 850-51 (7th Cir. 2015),
with United States v. Clarke, 428 F. App’x 712, 713 (9th Cir. 2011); see also
Puckett, 556 U.S. at 135.
      AFFIRMED.




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