United States v. Carrasco ( 2022 )

Case: 21-50866 Document: 00516532990 Page: 1 Date Filed: 11/03/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
No. 21-50866
Summary Calendar FILED
November 3, 2022
Lyle W. Cayce
United States of America, Clerk
Plaintiff—Appellee,
versus
Erbey Carrasco,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:21-CR-141-1
Before Higginbotham, Graves, and Ho, Circuit Judges.
Per Curiam:*
Erbey Carrasco appeals the sentence imposed following his conviction
for conspiracy to possess with intent to distribute 500 grams or more of
cocaine. He objects to the imposition of the standard conditions and one
mandatory condition of supervised release.
*
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opinion should not be published and is not precedent except under the limited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: 21-50866 Document: 00516532990 Page: 2 Date Filed: 11/03/2022
No. 21-50866
Any condition of supervised release not required by 18 U.S.C.
§ 3583(d) must be pronounced at sentencing. United States v. Diggles, 957
F.3d 551, 559 (5th Cir. 2020) (en banc). A district court may satisfy the
pronouncement requirement through reference to a list of recommended
supervised release conditions from a court-wide or judge-specific standing
order or some other document. Id. at 560-63. But the mere existence of a
document proposing conditions is not enough for pronouncement. Id. at 561
n.5. Instead, the district court must ensure that the defendant had an
opportunity to review the list of conditions with counsel and orally adopt that
list when the defendant is in court and can object. Id. at 560-61 & n.5.
As discussed below, because Carrasco had the opportunity to object
to the condition at sentencing but did not do so, review is for plain error. See
id.; United States v. Grogan, 977 F.3d 348, 352 (5th Cir. 2020). Establishing
plain error requires a showing of a forfeited error that is clear or obvious and
that affected his substantial rights. Puckett v. United States, 556 U.S. 129, 135
(2009). If Carrasco makes this showing, we have discretion to remedy the
error but should do so only if it “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. (internal quotation marks and
citation omitted).
In this case, the presentence report (PSR) recommended a special
search condition and that Carrasco be ordered to comply with “the
mandatory and standard conditions of supervision adopted by the Court.”
The district court confirmed at sentencing that Carrasco and defense counsel
had reviewed the PSR, adopted the PSR, and imposed “the standard and
mandatory conditions of supervision.” Under these circumstances, it was
apparent to defense counsel that imposition of the standard and mandatory
conditions of supervision was a reference to those conditions listed in the
Western District of Texas’s standing order for the conditions of probation
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Case: 21-50866 Document: 00516532990 Page: 3 Date Filed: 11/03/2022
No. 21-50866
and supervised release. See United States v. Martinez, 15 F.4th 1179, 1181 (5th
Cir. 2021).
According to Carrasco, the PSR did not explicitly recommend the
standard and mandatory conditions of supervision and instead stated that
they “may be appropriate.” Contrary to Carrasco’s contention, we have not
previously found a meaningful distinction between a recommendation in a
PSR and a statement that certain conditions may be appropriate. Thus, he
cannot show that the error, if any, is clear or obvious. See United States v.
Lucas, 849 F.3d 638, 644 (5th Cir. 2017).
Carrasco has filed a letter brief pursuant to Federal Rule of Appellate
Procedure 28(j). He contends that our recent decision in United States v.
Martinez, 47 F.4th 364, 367 (5th Cir. 2022), establishes that the district
court’s reference to the mandatory and standard conditions was insufficient
to orally pronounce those conditions because it was unclear whether it was a
reference to the district standing order. But in the new Martinez decision,
there was no indication that the PSR referenced the standard conditions of
supervision, and the conditions imposed were not identical to the list of
standard conditions on the district court’s website. See id. at 366-67. In this
case, as in our prior Martinez decision, it was apparent to defense counsel that
the district court was referencing the conditions listed in the Western
District’s standing order because of both the longstanding existence of the
standing order and the PSR’s reference to the conditions. See Martinez, 15
F.4th at 1181.
There is no conflict between the oral pronouncement of sentence and
the conditions of supervision included in Carrasco’s written judgment. See
Diggles, 957 F.3d at 559. The district court’s judgment is AFFIRMED.
3