United States v. Regalado ( 2023 )

Case: 22-50243 Document: 00516654727 Page: 1 Date Filed: 02/23/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 23, 2023
No. 22-50243 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Anthony Regalado,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:11-CR-976-1
Before Jones, Willett, and Douglas, Circuit Judges.
Per Curiam:*
Anthony Regalado was sentenced to 15 months in prison with
40 months of supervised release upon revocation of a prior term of
supervision. He appeals, arguing that one of the conditions imposed on his
new term of supervised release is unconstitutionally vague. See United States
v. Abbate, 970 F.3d 601, 603-04 (5th Cir. 2020). That condition requires him,
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 22-50243 Document: 00516654727 Page: 2 Date Filed: 02/23/2023
No. 22-50243
as directed by his probation officer, to notify third parties of risks that could
be occasioned by the defendant’s criminal record, personal history, or
characteristics. Regalado is also required to permit the probation officer to
make such notifications and to confirm that Regalado is complying with the
notification requirement.
Regalado did not object to the condition in the district court, so our
review is for plain error. See United States v. Grogan, 977 F.3d 348, 352 (5th
Cir. 2020). To prevail under the plain-error standard, a defendant must show
a forfeited error that is clear or obvious and that affects his substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009).
Because “any error cannot be plain” where the law is unsettled,
United States v. Fields, 777 F.3d 799, 805 (5th Cir. 2015), “lack of binding
authority is often dispositive in the plain-error context,” United States v.
Gonzalez, 792 F.3d 534, 538 (5th Cir. 2015). Regalado, who acknowledges
that this court has not addressed whether the language in question is
impermissibly vague, fails to establish that the error alleged was plain
notwithstanding the absence of such precedent. He has accordingly not
made the requisite showing. See Puckett, 556 U.S. at 135.
AFFIRMED.
2