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United States v. Cabello

United States Court of Appeals, Fifth Circuit

February 22, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JOHN MARTIN CABELLO, also known as Chinaman, Defendant-Appellant.

          Appeal from the United States District Court for the Northern District of Texas No. 3:16-CR-415-2

          Before HIGGINBOTHAM, ELROD, and HO, Circuit Judges.

          PER CURIAM.

         John 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 its imposition.

         Because 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).

         We have "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:

         I 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:

         I 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 explanation.

         I.

         "In 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:

         The 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. ยง] 3553(a)(1), (a)(2)(B), ...

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