from the United States District Court for the Southern
District of Texas
STEWART, Chief Judge, and JONES and OWEN, Circuit Judges.
dispute in this case arises from the district court's
decision on remand to re-impose a special condition of
supervised release on the Defendant-Appellant Ramos-Gonzales.
Ramos-Gonzales pleaded guilty to transporting an undocumented
alien into the United States. At sentencing, the district
court imposed two special conditions of supervised release-a
nighttime restriction and drug surveillance. Ramos-Gonzales
appealed those conditions to this court, and this court
remanded for resentencing on the grounds that the district
court committed plain error in failing to explain the basis
for the special conditions. At the subsequent sentencing
hearing, the district court re-imposed the drug surveillance
condition based on Ramos-Gonzales's 2012 conviction for
marijuana possession. Ramos-Gonzales now appeals the district
court's second judgment. We vacate the drug surveillance
special condition and affirm the sentence as modified.
October 4, 2015, Laura Ramos-Gonzales was arrested during her
attempt to transport undocumented individuals into the United
States under the rear seat of her vehicle in violation of 8
U.S.C. §§ 1324(a)(1)(A)(ii), 1324(a)(1)(A)(v)(II),
and 1324(a)(1)(B)(ii). On October 28, 2015, a Federal Grand
Jury indicted Ramos-Gonzales on two counts of transporting an
undocumented alien. On November 12, 2015, Ramos-Gonzales
pleaded guilty to the first count pursuant to a written plea
agreement. Following the plea, a presentence investigation
report (PSR) was prepared, which recommended a Guidelines
sentencing range of 8 to 14 months and a 3-year term of
supervised release. Ramos-Gonzales did not object to these
calculations. The subsequent sentencing proceedings, which
represent the principal focus of this appeal, are divided
into two stages, divided by an appeal and order issued by
January 26, 2016, the district court adopted the PSR as the
findings of the court and sentenced Ramos-Gonzales to 12
months in prison, followed by 3 years of supervised release
and accompanied by a $100 Special Assessment. The district
court imposed the "[s]tandard terms and conditions of
supervision, " and, importantly, imposed a
"nighttime restriction of 12 midnight to 6:00 a.m. and
drug surveillance." Ramos-Gonzales registered no objection
to these additional conditions of supervised release at the
appealed despite previously failing to register an objection,
arguing that the district court committed reversible plain
error by imposing the drug surveillance and nighttime
restriction conditions of supervised release. See
Brief of Appellant, United States v. Ramos-Gonzales,
No. 16-40146, 2016 WL 3770852, at *8-14 (July 7, 2016). In
particular, she argued that the district court had failed to
explain its reasons, and the record itself did not furnish
independent evidentiary support for the restrictions.
Id. at *9-10. With respect to the drug surveillance
condition, Ramos-Gonzales argued that "there [was]
absolutely no evidence that [she] currently uses illegal
drugs, " and pointed out that the PSR indicated that she
first smoked marijuana at 14 years of age and had not engaged
in such activity in 25 years. Id. at *9. She also
pointed out that the offense charged against her had nothing
to do with drug use, nor did any of her prior offenses.
Government moved to remand the case for reconsideration of
the special conditions, agreeing with Ramos-Gonzales that
"the district court commit[ed] reversible error by
failing to explain the reasons for imposing special
conditions of supervised release where the record is silent
in support of the special conditions." The Government
also agreed that the record "[did] not indicate how the
supervised release special conditions of nighttime
restriction and drug surveillance [were] related to the
underlying offense of alien transporting or to the relevant
statutory considerations under 18 U.S.C. §
3553(a)." Id. at 3. In particular, the
Government stated that "[a]lthough Ramos has a 2012
conviction for possession of 44 pounds of marijuana and last
smoked marijuana 25 years ago, no indication in the record
exists that she has an illicit drug problem to warrant drug
surveillance requiring periodic urine and/or breath, saliva,
and skin tests to detect drug abuse." Id.
conducted an independent review of the case, and exercised
our discretion to grant plain error relief, summarily
remanding the case to the district court for resentencing.
Order, United States v. Laura Ramos-Gonzales, No.
16-40146, at 2 (5th Cir. Aug. 17, 2016).
district court conducted a resentencing hearing on September
27, 2016, at which time it reconsidered the special
conditions. The district court vacated the nighttime
restriction, because Ramos-Gonzales would be living with her
children and because there was no evidence that the offense
in question occurred at nighttime. The district court decided
to maintain the drug surveillance condition, however.
Ramos-Gonzales objected on the basis that she
"didn't feel . . . the drug restrictions [applied to
her] because [she had not] used drugs for many years."
The district court replied: "Well you have a drug
conviction. So that's going to stay and that's the
way that goes." Counsel for Ramos-Gonzales spoke to
preserve her objection to the drug surveillance condition
"as an invasion of privacy and a financial burden."
A colloquy on those topics ensued. The district court
concluded the discussion by asking: "Are you denying her
drug conviction?" Counsel responded: "Not the
conviction, your Honor. Just based on what's in the PSR
is that her drug use is very old in time." The district
court re-imposed the drug surveillance condition and
concluded the hearing. Ramos-Gonzales filed this appeal.