from the United States District Court for the Northern
District of Texas No. 3:16-CR-415-2
HIGGINBOTHAM, ELROD, and HO, Circuit Judges.
Martin Cabello appeals the imposition of a
"standard" condition of supervised release that
requires 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." In his view, this standard
visitation condition is substantively unreasonable and at
least requires the district court to explain the reasons for
Cabello did not object in the district court, we review for
plain error. United States v. Ponce-Flores, 900 F.3d
215, 217 (5th Cir. 2018). To demonstrate plain error, Cabello
must show that: "(1) there was an error; (2) the error
was clear or obvious; (3) the error affected [his]
substantial rights; and (4) the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings such that we should exercise our discretion to
reverse." United States v. Oti, 872 F.3d 678,
690 (5th Cir. 2017).
"not addressed the constitutionality or substantive
reasonableness of the challenged standard [visitation]
condition or whether a district court must explain its
reasons for imposing a standard condition of supervised
release." United States v. Ferrari, 743
Fed.Appx. 560, 561 (5th Cir. 2018). As Cabello concedes,
"[w]e ordinarily do not find plain error when we
'have not previously addressed' an issue."
United States v. Evans, 587 F.3d 667, 671 (5th Cir.
2009) (quoting United States v. Lomas, 304 Fed.Appx.
300, 301 (5th Cir. 2008)). Because Cabello failed to show
plain error, we AFFIRM the imposition of the visitation
condition as part of Cabello's supervised release.
PATRICK E. HIGGINBOTHAM, Circuit Judge, concurring:
concur fully in the affirmance of the district court's
sentence. With great respect to the best intentions of my
colleague, faithful adherence to the statute does not require
an explanation of each standard condition from the lips of
district judges and insisting on such a requirement can
produce a robotic delivery and perverse consequences in busy
districts. Ticking off a laundry list of explanations for
thirteen additional standard conditions-most of which are
self-evident and administrative-constrains the district
judge's ability to communicate directly with a defendant
during this critical juncture of the criminal proceeding.
District judges are in the best position to tailor the
necessary process to ensure that defendants fully understand
the constraints imposed. Defendants are provided qualified
counsel for sentencing-often Federal Public Defenders-counsel
who are keenly aware of these conditions and can give
assurances in open court of having explained the conditions
to their clients and can lodge any objections counsel may
have. As the plain language of 18 U.S.C. § 3583(d) does
not require explanation of each standard condition by the
district judge, declining to do so is not unfaithful
adherence to this statute.
JENNIFER WALKER ELROD, Circuit Judge, concurring:
concur in the panel opinion as it correctly holds that
Cabello cannot prevail under the plain-error standard of
review. However, I write separately to emphasize that it may
be more faithful to the statutory text for sentencing courts
to explain the reasons for imposing "standard"
conditions of supervised release. Although the Sentencing
Guidelines label certain conditions as standard conditions,
they are nonetheless discretionary-not mandatory- conditions
under 18 U.S.C. § 3583(d) that typically require an
the Sentencing Reform Act of 1984, Congress eliminated most
forms of parole in favor of supervised release, a form of
[post-confinement] monitoring overseen by the sentencing
court . . . ." Johnson v. United States, 529
U.S. 694, 696-97 (2000) (citation omitted). 18 U.S.C. §
3583 governs a sentencing court's discretion in deciding
whether to impose supervised release and which conditions to
impose. 18 U.S.C. § 3583. Section 3583(d) classifies
supervised release conditions as either "mandatory"
or "discretionary." Id. § 3583(d). As
mandatory conditions, a sentencing court "shall"
require that the defendant not commit a crime, make
restitution, not unlawfully possess or use a controlled
substance, and submit to drug tests. Id. In
addition, § 3583(d) also states that:
court may order, as a further condition of supervised
release, to the extent that such condition -
(1) is reasonably related to the factors set forth in [18
U.S.C. §] 3553(a)(1), (a)(2)(B), ...