United States v. Santillana , 109 F. App'x 665 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT September 3, 2004
Charles R. Fulbruge III
No. 03-40975 Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
SANTIAGO SANTILLANA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of Texas
(B-03-CR-126-1)
Before BARKSDALE and PICKERING, Circuit Judges, and LYNN*,
District Judge.
PER CURIAM:**
Santiago Santillana pleaded guilty to conspiring to transport
and harbor illegal aliens, in violation of 8 U.S.C. §
1324(a)(1)(A)(v)(I). He was sentenced, inter alia, to 37 months’
imprisonment and three years’ supervised release. Santillana
claims the judgment (written judgment) improperly added a condition
of supervised release (“not possess ... any other dangerous
*
District Judge for the Northern District of Texas, sitting by
designation.
**
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this opinion should not be published and is not precedent except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.
weapon”) not mentioned in the oral sentence pronouncement and that
this condition is vague and overbroad. AFFIRMED.
I.
At sentencing, the district court stated, inter alia, that
Santillana would serve three years’ supervised release, in
compliance with the standard conditions required by law and the
special conditions that he not unlawfully possess or use a
controlled substance and that he attend a substance abuse program;
and that he “not possess a firearm or destructive device”. The
written judgment, however, stated, inter alia: “The defendant
shall not possess a firearm, destructive device, or any other
dangerous weapon”. (Emphasis added.)
II.
A.
Santillana contends the “not possess ... any other dangerous
weapon” condition is an additional special condition of his
supervised release that was not pronounced at oral sentencing and
is therefore improper. Obviously, Santillana could not have
objected at sentencing to the any-other-dangerous-weapon condition
because it was not imposed until the written judgment. Therefore,
we review for abuse of discretion the imposition of the condition.
United States v. Torres-Aguilar, 352 F.3d 934, 935 (5th Cir. 2003).
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1.
Santillana relies on United States v. Martinez, 250 F.3d 941,
942 (5th Cir. 2001), which held a defendant’s constitutional right
to be present at sentencing requires that, “when there is conflict
between a written sentence and an oral pronouncement, the oral
pronouncement controls”. In Martinez, the district court imposed
a special condition of mandatory drug treatment in its written
judgment that had not been orally pronounced at sentencing. Id.
Martinez held it was significant that the mandatory drug treatment
was a “special” condition of release that imposed a greater
restriction on liberty than the “standard” conditions, which need
not be specifically included in the oral pronouncement. Id.
Because the district court’s failure to mention the special
condition of drug treatment at sentencing created a conflict with
the written judgment, we remanded for the district court to amend
the written judgment to conform to the oral sentence pronouncement.
Id.
Santillana’s reliance on Martinez is misplaced; the any-other-
dangerous-weapon restriction is not a special condition. The
condition is stated in the written judgment’s standard “supervised
release” section, not in the “special conditions of supervision”
section.
In Torres-Aguilar, we held prohibiting the defendant from
possessing “any other dangerous weapon” during supervised release
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was a standard condition because it was recommended by Sentencing
Guidelines § 5D1.3(d)(1) for all defendants convicted of a felony.
352 F.3d at 938. Accordingly, because Santillana was convicted of
a felony, the addition of the standard dangerous-weapon condition
in the written judgment did not conflict with the district court’s
oral pronouncement. Id.
Torres-Aguilar is controlling. The district court did not
abuse its discretion by including the dangerous-weapon condition in
the written judgment.
2.
Santillana claims Torres-Aguilar violates Article III of the
Constitution by failing to follow United States v. Gurrola-
Martinez, No. 02-20945, 74 Fed. Appx. 383 (5th Cir. 2003)
(unpublished)(remanding to district court for written judgment to
conform to oral sentence pronouncement where oral sentence did not
contain “any dangerous weapon” supervised release condition). He
cites no Supreme Court or published Fifth Circuit authority
supporting this contention and our local Rule 47.5.4 states that
unpublished opinions issued after 1 January 1996 are not precedent,
except in limited circumstances not applicable here. Cf. Williams
v. Dallas Area Rapid Transit, 256 F.3d 260 (5th Cir. 2001) (denial
of petition for rehearing en banc over dissent questioning Fifth
Circuit’s rule of denying precedential status to unpublished
opinions).
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B.
Santillana next maintains the any-other-dangerous-weapon
condition should be deleted from the written judgment because it is
vague and overbroad. Although the district court has wide
discretion in imposing these conditions, they “must be reasonably
related to ‘the nature and circumstances of the offense and the
history and characteristics of the defendant’, 18 U.S.C. §
3355(a)(1); and must involve no greater deprivation of liberty than
is reasonably necessary in the light of the need to ‘afford
adequate deterrence to criminal conduct’, 18 U.S.C. § 3553(a)(2)(B)
[, and] ‘to protect the public from further crimes of the
defendant’, 18 U.S.C. § 3553(a)(2)(C)”. United States v. Coenen,
135 F.3d 938, 944-45 (5th Cir. 1998) (emphasis in original). For
the following reasons, we hold there was no abuse of discretion.
1.
We interpret Santillana’s “overbreadth” challenge to mean the
any-other-dangerous-weapon condition violates the limiting
requirement that it involve no greater deprivation on liberty than
necessary to achieve its goals. See United States v. Paul, 274
F.3d 155, 165 n.12 (5th Cir. 2001), cert. denied, 535 U.S. 1002
(2002). Santillana was convicted of transporting illegal aliens
and while on supervised release is prohibited from committing both
federal and state crimes. Under these circumstances, the any-
other-dangerous-weapon condition does not involve a greater
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deprivation of liberty than is necessary to afford adequate
deterrence of criminal conduct and to protect the public from
further crimes by him.
2.
For Santillana’s vagueness challenge, we have held:
“Conditions of probation may afford fair warning even if they are
not precise to the point of pedantry. In short, conditions of
probation can be written — and must be read — in a commonsense
way”. Id. at 167 (citations omitted; emphasis added). A
“dangerous weapon” is defined by the Guidelines as
(i) an instrument capable of inflicting death
or serious bodily injury; or (ii) an object
that is not capable of inflicting death or
serious bodily injury but (I) closely
resembles such an instrument; or (II) the
defendant used the object in a manner that
created the impression that the object was
such an instrument (e.g. a defendant wrapped a
hand in a towel during a bank robbery to
create the appearance of a gun).
U.S.S.G. § 1B1.1, comment (n.1(d)). When read in the requisite
commonsense manner, this definition reflects that intent to cause
harm is required in order to characterize as a dangerous weapon an
instrument which is not dangerous when used in its customary
manner.
III.
For the foregoing reasons, the judgment is
AFFIRMED.
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