United States v. Flores-Brewster ( 2022 )


Menu:
  • Case: 20-40817     Document: 00516459723         Page: 1     Date Filed: 09/06/2022
    United States Court of Appeals
    for the Fifth Circuit                            United States Court of Appeals
    Fifth Circuit
    FILED
    September 6, 2022
    No. 20-40817                        Lyle W. Cayce
    Clerk
    United States of America,
    Plaintiff—Appellee,
    versus
    Roberto Flores-Brewster,
    Defendant—Appellant.
    Appeal from the United States District Court
    for the Southern District of Texas
    USDC No. 7:19-CR-997-3
    Before Jones, Stewart, and Duncan, Circuit Judges.
    Per Curiam:*
    Having plead guilty of conspiring to transport illegal aliens, Roberto
    Flores-Brewster contests a sentence enhancement for endangering the aliens
    by carrying them in a secret compartment beneath a tractor-trailer. He also
    contests several special conditions of supervised release included in the
    written judgment. We affirm.
    *
    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    opinion should not be published and is not precedent except under the limited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: 20-40817      Document: 00516459723          Page: 2   Date Filed: 09/06/2022
    No. 20-40817
    I. Facts and Proceedings
    In 2019, Roberto Flores-Brewster pleaded guilty of conspiracy to
    transport aliens within the United States. See 
    8 U.S.C. § 1324
    (a)(1)(A)(ii),
    1324(a)(1)(A)(v)(II). His PSR calculated a total offense level of 33, including
    a two-level enhancement for intentionally or recklessly creating a substantial
    risk of death or serious bodily injury to another person. See U.S.S.G.
    § 2L1.1(b)(6). The enhancement was based on evidence that, as part of the
    conspiracy, an alien had reported being transported from the Rio Grande
    Valley to San Antonio for four hours in a “small, confined compartment”
    underneath a tractor-trailer with no way to contact the driver. The PSR found
    these circumstances could expose the alien to substantial risk of “death in
    the event of an accident and[/]or asphyxiation should she have been
    abandoned.” The PSR also reported Flores-Brewster’s history of alcohol,
    cocaine, and marijuana use, along with numerous supervised release
    violations based on drug abuse and failure to attend court-ordered drug
    treatment. Finally, an appendix to the PSR listed recommended conditions
    of supervised release.
    Flores-Brewster objected to the two-level enhancement, which the
    district court overruled. After the parties agreed to various changes to the
    PSR’s calculations, which the court accepted, Flores-Brewster’s total
    offense level was 24 and his criminal history category was IV, resulting in a
    guidelines range of 77 to 96 months’ imprisonment. The court sentenced
    Flores-Brewster to 85 months’ imprisonment and a three-year term of
    supervised release.
    As part of the orally pronounced supervised release conditions, the
    court required Flores-Brewster “to comply with the standard conditions
    adopted by the Court,” required him “to participate in drug and alcohol
    treatment,” pronounced several other conditions, and stated that “[a]ll of
    these conditions are as set out in the appendix to the [PSR].” At defense
    2
    Case: 20-40817      Document: 00516459723           Page: 3     Date Filed: 09/06/2022
    No. 20-40817
    counsel’s suggestion, the court also recommended Flores-Brewster for the
    Bureau of Prisons’ drug treatment program. Flores-Brewster did not object
    to the sentence imposed.
    The written judgment included four mandatory and 14 standard
    conditions of supervised release. It also included six “special” conditions:
    (1) participate in (and pay for, if able) an inpatient or outpatient substance-
    abuse treatment program under the probation officer’s supervision; (2) the
    same provision for an alcohol-abuse treatment program; (3) not possess a
    controlled substance without a prescription; (4) submit to (and pay for, if
    able) substance-abuse testing; (5) not use or possess alcohol; and (6) not use
    or possess any psychoactive substances without the probation officer’s prior
    approval.
    Flores-Brewster timely appealed his sentence.
    II. Standard of Review
    Flores-Brewster challenges the special conditions in his written
    judgment on various grounds. Because Flores-Brewster did not object to any
    of the conditions, our standard of review depends of whether he had notice
    and an opportunity to object. See United States v. Diggles, 
    957 F.3d 551
    , 559–
    60 (5th Cir.) (en banc), cert. denied, 
    141 S. Ct. 825
     (2020). If he did, we review
    for plain error. See United States v. Mejia-Banegas, 
    32 F.4th 450
    , 451 (5th Cir.
    2022) (per curiam) (citation omitted). If he did not, we review for abuse of
    discretion. See United States v. Grogan, 
    977 F.3d 348
    , 353 (5th Cir. 2020)
    (citations omitted). Flores-Brewster also challenges the two-level sentencing
    enhancement under U.S.S.G. § 2L1.1(b)(6). We review the district court’s
    application of the Sentencing Guidelines de novo and the court’s factual
    findings for clear error. United States v. Landreneau, 
    967 F.3d 443
    , 449 (5th
    Cir. 2020) (citation omitted).
    3
    Case: 20-40817        Document: 00516459723             Page: 4      Date Filed: 09/06/2022
    No. 20-40817
    III. Discussion
    A. Delegation of Authority to Probation Officer
    Flores-Brewster challenges the substance-abuse treatment condition
    insofar as it authorizes his probation officer to designate inpatient or
    outpatient treatment. He argues our review of this discretionary condition 1
    should be for abuse of discretion because he lacked opportunity to object. We
    disagree. As the government points out, the district court orally pronounced
    that Flores-Brewster must “participate in drug and alcohol treatment.”
    Moreover, the PSR discussed Flores-Brewster’s history of substance abuse,
    highlighting that he “was ordered to attend drug treatment” while on
    supervised release but “failed to attend[,] resulting in numerous violations.”
    Ample testimony discussed Flores-Brewster’s “serious drug addiction
    problem” and his need for “a lot of help” including placement “get[ting]
    him to a rehab center.” Given his “constant substance abuse,” his attorney
    asked that substance-abuse treatment such as a “rehab facility” be
    “available.” In light of all this, we conclude that “at a minimum” Flores-
    Brewster had an opportunity “to ask for more specificity about the
    [substance-abuse treatment] conditions” orally pronounced by the court.
    United States v. Martinez, 
    15 F.4th 1179
    , 1181 (5th Cir. 2021). We therefore
    review for plain error. See United States v. Hernandez, No. 21-40161, 
    2022 WL 1224480
    , at *3 (5th Cir. Apr. 26, 2022) (per curiam).
    Brewster cannot show plain error. To be “plain,” “the legal error
    must be clear or obvious, rather than subject to reasonable dispute.” Puckett
    v. United States, 
    556 U.S. 129
    , 135 (2009) (citing United States v. Olano, 507
    1
    A discretionary condition of supervised release—i.e., one not required by 
    18 U.S.C. § 3583
    (d)—must be orally pronounced. See Diggles, 957 F.3d at 559, 563. A
    condition requiring participation in a substance-abuse program falls within this category.
    United States v. Garcia, 
    983 F.3d 820
    , 823–24 (5th Cir. 2020); United States v. Gomez, 
    960 F.3d 173
    , 179–80 (5th Cir. 2020).
    4
    Case: 20-40817      Document: 00516459723           Page: 5    Date Filed: 09/06/2022
    No. 20-
    40817 U.S. 725
    , 734 (1993)). Our court’s decisions evaluate a probation officer’s
    delegated authority to determine inpatient or outpatient treatment based in
    part on sentence length. See United States v. Martinez, 
    987 F.3d 432
    , 436 (5th
    Cir. 2021) (delegation impermissible under a 10-month sentence); United
    States v. Medel-Guadalupe, 
    987 F.3d 424
    , 431 (5th Cir. 2021) (delegation
    permissible under a 10-year sentence); see also United States v. Huerta, 
    994 F.3d 711
    , 716 (5th Cir. 2021) (reconciling cases in part on this basis).
    Brewster’s 85-month sentence falls between the sentences in
    Martinez and Medel-Guadalupe. “[B]ecause we have never passed on the
    significance (if any) of the length of a sentence falling between those in
    Martinez and Medel-Guadalupe, this matter remains subject to ‘reasonable
    debate’ and a lack of ‘clear or obvious’ error is a given.” United States v.
    Aguilar-Cerda, 
    27 F.4th 1093
    , 1096 (5th Cir. 2022) (quoting United States v.
    Ortega, 
    19 F.4th 831
    , 834 (5th Cir. 2021)). Brewster therefore cannot
    establish plain error. See United States v. Huerta, No. 19-41018, 
    2022 WL 68974
    , at *2 (5th Cir. Jan. 6, 2022) (finding no plain error on
    inpatient/outpatient delegation because law is unsettled); United States v.
    Johnson, 850 F. App’x 279, 280 (5th Cir. 2021) (per curiam) (same).
    B. Remaining Special Conditions
    Flores-Brewster seeks vacatur of the remaining special conditions in
    the written judgment insofar as they are discretionary, were not orally
    pronounced, and conflict with the orally pronounced conditions. “[W]here
    the oral pronouncement and written judgment conflict, the oral
    pronouncement controls.” United States v. Tanner, 
    984 F.3d 454
    , 456 (5th
    Cir. 2021) (citation omitted). “A conflict exists where the written judgment
    broadens the restrictions or requirements of supervised release from an oral
    pronouncement or imposes a more burdensome requirement.” Sealed
    Appellee v. Sealed Appellant, 
    937 F.3d 392
    , 400 (5th Cir. 2019) (cleaned up).
    If, however, “the written judgment simply clarifies an ambiguity in the oral
    5
    Case: 20-40817         Document: 00516459723              Page: 6       Date Filed: 09/06/2022
    No. 20-40817
    pronouncement, we look to the sentencing court’s intent to determine the
    sentence.” Tanner, 984 F.3d at 456 (citation omitted). Intent is determined
    from “the entire record.” Ibid. (citation omitted). 2
    We consider each of the challenged special conditions in turn. 3
    (1). Costs of Substance-Abuse Treatment.
    Our precedent forecloses Flores-Brewster’s challenge to the
    requirement that he pay the costs of substance-abuse treatment. 4 A condition
    requiring the defendant to pay for such treatment, even when first mentioned
    in the written judgment, creates at most an ambiguity that may be resolved
    by examining the record for evidence of the district court’s intent. See, e.g.,
    United States v. Vega, 
    332 F.3d 849
    , 852 (5th Cir. 2003); United States v.
    Zavala, 835 F. App’x 767, 768 (5th Cir. 2021) (per curiam). The record
    plainly manifests the district court’s intent that Flores-Brewster participate
    in drug treatment. So, no conflict exists between the written judgment and
    oral pronouncement. Vega, 
    332 F.3d at 852
     (“As the requirement that a
    defendant bear the costs of his drug treatment is ‘clearly consistent’ with the
    2
    Diggles did not change our law on the distinction between conflicts and
    ambiguities in oral pronouncements and written judgments. See 957 F.3d at 563; see also,
    e.g., Tanner, 984 F.3d at 455–57; United States v. Madrid, 
    978 F.3d 201
    , 207 (5th Cir. 2020).
    3
    The government agrees with Flores-Brewster that the last four special conditions
    were not pronounced and conflict with the written judgment, so we should remand for the
    district court to remove them. But we are “not bound by the [g]overnment’s concession,
    and we ‘give the issue independent review.’” United States v. Castaneda, 
    740 F.3d 169
    , 171
    (5th Cir. 2013) (per curiam) (citation omitted).
    4
    Flores-Brewster does not generally challenge the requirement that he participate
    in substance-abuse treatment, only that he pay for that treatment. He also raises no
    challenge to a separate, nearly identical special condition requiring him to pay for alcohol-
    abuse treatment.
    6
    Case: 20-40817       Document: 00516459723            Page: 7      Date Filed: 09/06/2022
    No. 20-40817
    court’s intent that he attend treatment, the two judgments do not conflict and
    no modification of the sentence is warranted.”). 5
    (2). Possessing Controlled Substances Without a Prescription.
    Flores-Brewster’s challenge to this condition also fails. The district
    court was not required to pronounce the condition barring him from
    possessing controlled substances without a prescription because it is covered
    by the mandatory condition “that the defendant not unlawfully possess a
    controlled substance.” 
    18 U.S.C. § 3583
    (d); see 
    Tex. Health & Safety Code Ann. § 481.117
     (criminalizing possession of controlled substance
    without prescription); Hernandez, 
    2022 WL 1224480
    , at *3 (finding no error
    where court included same condition in written judgment without
    pronouncement because it overlaps with section 3583(d)); cf. United States v.
    Vasquez-Puente, 
    922 F.3d 700
    , 705–06 (5th Cir. 2019) (finding no abuse of
    discretion where “no reentry” special condition duplicated mandatory
    condition that defendant not reenter country illegally). 6
    (3). Submitting to (and Paying for) Substance-Abuse Testing.
    We reject Flores-Brewster’s challenge to this condition because it
    creates no conflict with the oral pronouncement. The district court orally
    required Flores-Brewster to participate in a drug treatment program.
    Moreover, he was already required, as a mandatory condition of release, to
    submit to some drug testing. So, the drug-testing condition here does not
    conflict with the oral pronouncement of sentence. See, e.g., United States v.
    Lozano, 834 F. App’x 69, 75 (5th Cir. 2020) (per curiam) (no conflict
    between special drug-testing condition and oral pronouncement because
    5
    We therefore need not determine whether we should review this issue for plain
    error or abuse of discretion.
    6
    We therefore need not determine whether we should review this issue for plain
    error or abuse of discretion.
    7
    Case: 20-40817         Document: 00516459723            Page: 8      Date Filed: 09/06/2022
    No. 20-40817
    defendant “was already obligated to participate in a drug-treatment program
    and, as a mandatory condition of release, submit to some drug testing”)
    (citing Vega, 
    332 F.3d at 854
    ). 7 Nor does requiring payment for testing create
    a conflict. See 
    ibid.
     (citing Vega, 
    332 F.3d at 852
    ; United States v. Thomas, No.
    19-20520, 830 F. App’s 420, 423–25 (5th Cir. Oct. 8, 2020); United States v.
    Warden, 
    291 F.3d 363
    , 365 (5th Cir. 2002)). 8
    (4). Use and Possession of Alcohol and Psychoactive Substances.
    We also affirm the conditions that Brewster not possess or use alcohol
    or any psychoactive substances, including synthetic marihuana or bath salts.
    The PSR describes Brewster’s abuse of alcohol, marihuana, and cocaine. It
    also details his lengthy criminal history, including four convictions for driving
    while intoxicated and four convictions for narcotics possession. At
    sentencing, his brother testified to Brewster’s “real serious drug habit,”
    noting his drug of choice was synthetic marihuana. The record accordingly
    reflects that the special alcohol and psychoactive-substances conditions “are
    consistent with the orally-pronounced condition[s] that [Brewster] undergo
    [alcohol and] drug treatment and the district court’s intention that [he]
    receive treatment for his extensive substance abuse and alcohol issues.”
    Zavala, 835 F. App’x at 768 (affirming same alcohol and psychoactive-
    substances conditions); see also Lozano, 834 F. App’x at 75 (affirming same
    psychoactive-substances condition given “the evidence of [defendant]’s
    history of cocaine and alcohol abuse and the orally pronounced supervised
    release conditions requiring him to participate in substance- and alcohol-
    7
    Cf. United States v. Johnson, 850 F. App’x 894, 895, 896–97 (5th Cir. 2021) (per
    curiam) (finding written special drug-testing condition conflicted with oral pronouncement
    where oral pronouncement did not order participation in drug treatment program).
    8
    We therefore need not determine whether we should review this issue for plain
    error or abuse of discretion.
    8
    Case: 20-40817       Document: 00516459723            Page: 9      Date Filed: 09/06/2022
    No. 20-40817
    abuse treatment programs”). Those conditions do not create a conflict with
    the orally pronounced sentence. 9
    C. Two-Level Enhancement Under U.S.S.G. § 2L1.1(b)(6)
    Finally, Flores-Brewster challenges the two-level sentencing
    enhancement under U.S.S.G. § 2L1.1(b)(6) for creating a substantial risk of
    death or serious injury to another. The district court applied this
    enhancement based on evidence—in the form of text messages a material
    witness received from the transported alien, “Cristelia”—showing aliens
    were transported in a confined compartment beneath a tractor-trailer for
    several hours without any way of communicating with the driver. Flores-
    Brewster argues the district court improperly based its findings “on
    uncorroborated double hearsay relayed by an unidentified witness.” While
    we usually review an application of the Sentencing Guidelines de novo (and
    factual findings for clear error), see Landreneau, 967 F.3d at 449, the
    government argues we should review for plain error because Flores-Brewster
    did not properly preserve this issue. We need not resolve this dispute because
    there was no error under either standard. United States v. Perryman, 
    965 F.3d 424
    , 427 (5th Cir. 2020).
    At sentencing, a “court may consider relevant information without
    regard to its admissibility under the rules of evidence applicable at trial,
    provided that the information has sufficient indicia of reliability to support its
    probable accuracy.” U.S.S.G. § 6A1.3(a); see also United States v. Malone, 
    828 F.3d 331
    , 337 (5th Cir. 2016) (citation omitted) (interpreting this language
    “to require that the facts used by the district court for sentencing purposes
    be reasonably reliable”). Accordingly, we have held that, “for sentencing
    purposes, even ‘uncorroborated hearsay evidence’ is sufficiently reliable.”
    9
    We therefore need not determine whether we should review this issue for plain
    error or abuse of discretion.
    9
    Case: 20-40817     Document: 00516459723            Page: 10    Date Filed: 09/06/2022
    No. 20-40817
    United States v. Collins, 
    774 F.3d 256
    , 265 (5th Cir. 2014) (quoting United
    States v. West, 
    58 F.3d 133
    , 138 (5th Cir. 1995)).
    The disputed text messages relied on by the district court were
    sufficiently reliable. In them, Cristelia, an illegal alien, described to Landez-
    Mimiaga, an illegal alien and material witness, how and when aliens would be
    transported in precise detail. Moreover, Cristelia’s statements were
    corroborated by evidence from other co-conspirators that they used tractor
    trailers to transport illegal aliens in an unsafe manner. See, e.g., United States
    v. Smith, 359 F. App’x 491, 492–93 (5th Cir. 2010) (per curiam) (affirming
    enhancement based on double hearsay where defendant did not show it was
    unreliable or untrue); see also United States v. Rico, 
    864 F.3d 381
    , 386 (5th Cir.
    2017) (“Statements by coconspirators are sufficiently reliable to form the
    basis of a finding.” (citations omitted)).
    The district court did not err, clearly or otherwise, in finding these
    conditions of transport created a substantial risk of death or bodily injury. We
    consider five factors when applying § 2L1.1(b)(6): “the availability of oxygen,
    exposure to temperature extremes, the aliens’ ability to communicate with
    the driver of the vehicle, their ability to exit the vehicle quickly, and the
    danger to them if an accident occurs.” United States v. Zuniga-Amezquita,
    
    468 F.3d 886
    , 889 (5th Cir. 2006). These factors were amply met here, as the
    district court explained in detail:
    [W]e don’t have here a situation where the alien just said it was
    “awful,” we have much more than that. It is a compartment
    not intended for passenger travel, she has no real way to
    communicate should there be some emergency come up. Also,
    in the event of an accident it’s highly unlikely that anybody
    would be looking for passengers in that small compartment.
    And it is a small compartment, although we don’t have any real
    information as far as ventilation, the Court, I think, from the
    description that is given, does believe that that would be an
    issue, as well.
    10
    Case: 20-40817     Document: 00516459723           Page: 11   Date Filed: 09/06/2022
    No. 20-40817
    These findings are plausible and support the enhancement. See, e.g.,
    Zuniga-Amezquita, 
    468 F.3d at 889
     (“Transporting aliens in a manner that
    significantly hinders their ability to exit the vehicle quickly creates a
    substantial risk of death or serious bodily injury.”); United States v.
    Rodriguez-Mesa, 
    443 F.3d 397
    , 403 (5th Cir. 2006) (affirming enhancement
    where illegal alien was transported in “contorted position” where he “could
    not have easily extricated himself”); see also United States v. Johnson, 369 F.
    App’x 569, 573 (5th Cir. 2010) (per curiam) (affirming enhancement where
    illegal aliens “confined in close quarters” and “wedged into a small cabinet”
    “would face significant difficulties in attempting to exit the vehicle”).
    IV.
    Flores-Brewster’s sentence is AFFIRMED.
    11