United States v. Marbis Diaz-Espinoza , 572 F. App'x 264 ( 2014 )

Case: 13-40805 Document: 00512663430 Page: 1 Date Filed: 06/13/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-40805
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
June 13, 2014
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
MARBIS DIAZ-ESPINOZA,
Defendant-Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 2:13-CR-215-1
Before DeMOSS, OWEN, and GRAVES, Circuit Judges.
PER CURIAM: *
Marbis Diaz-Espinoza was convicted by a jury of illegal reentry following
deportation, and he was sentenced to 36 months of imprisonment and two
years of supervised release. The district court stated at sentencing that, as a
special condition of his supervised release, Diaz-Espinoza must “not use any
name other than [his] true name or true date of birth.”
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-40805
On appeal, Diaz-Espinoza contends that the “true name and date of
birth” condition is not reasonably related to the purposes of supervised release
and is a greater deprivation of liberty than reasonably necessary because it
violates his First Amendment right to free speech. Because he did not object
to the imposition of this special condition in the district court, our review is for
plain error. See United States v. Talbert, 501 F.3d 449, 452 (5th Cir. 2007).
A district court may impose any condition of supervised release that is
reasonably related to one of four factors: (1) the nature and characteristics of
the offense and the history and characteristics of the defendant, (2) deterrence
of criminal conduct, (3) protection of the public, and (4) the need to provide the
defendant with educational training, medical care, or other correctional
treatment. United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009); 18
U.S.C. §§ 3553(a)(1), (2)(B)-(D), 3583(d). The condition may not involve a
greater deprivation of liberty than is reasonably necessary and must be
consistent with the policy statements issued by the Sentencing Commission.
Weatherton, 567 F.3d at 153.
Diaz-Espinoza asserts that the true-name special condition was not
reasonably related to any of the Weatherton factors because his offense did not
involve the use of a false name or false date of birth and because the
presentence report did not indicate that he has a history of having used a false
name. The presentence report, however, belies Diaz-Espinoza’s position, as he
has used various different combinations of his name and different dates of
birth, which he admitted. Diaz-Espinoza also contends that he has a First
Amendment right to use a false name or false date of birth in some
circumstances and that the true-name condition is not narrowly tailored to
accommodate that constitutional right. Because Diaz-Espinoza’s argument
involves an extension of United States v. Alvarez, 132 S. Ct. 2537, 2544-47,
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No. 13-40805
2553-55 (2012) (Breyer, J., concurring), rather than a straightforward
application of that case, any error on the part of the district court was not clear
or obvious. See United States v. Vargas-Soto, 700 F.3d 180, 182 (5th Cir. 2012),
cert. denied, 133 S. Ct. 1482 (2013).
AFFIRMED.
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