United States v. Evola Brent

Case: 17-50241 Document: 00514644408 Page: 1 Date Filed: 09/17/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 17-50241 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
September 17, 2018
UNITED STATES OF AMERICA, Lyle W. Cayce
Clerk
Plaintiff-Appellee
v.
EVOLA LOWRY BRENT, also known as “C.C.”,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 7:07-CR-41-2
Before DAVIS, HAYNES and GRAVES, Circuit Judges.
PER CURIAM: *
Evola Lowry Brent appeals the revocation of her supervised release
following her conviction for possession with intent to distribute 50 grams or
more of cocaine base “crack” within 1,000 feet of an elementary school and
playground. Specifically, she contends that the district court plainly erred in
imposing as a special condition of supervised release a restriction prohibiting
her from traveling or residing in an area of Midland, Texas, known as “the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 17-50241
Flats.” Brent argues that this geographical restriction, which was imposed
without reasons, is overbroad and results in a greater deprivation of liberty
than is reasonably necessary to achieve sentencing purposes.
As an initial matter, the Government argues that the waiver of appeal
provision in Brent’s original plea agreement bars consideration of this appeal.
We pretermit discussion of the waiver issue because Brent is not entitled to
relief on the merits.
A district court has “wide discretion to impose any supervised release
condition that it considers to be appropriate.” United States v. Woods, 547 F.3d
515, 517 (5th Cir. 2008). “Supervised release conditions may include barring
a defendant from frequenting specified kinds of places or from associating
unnecessarily with specified persons.” United States v. Rodriguez, 558 F.3d
408, 412 (5th Cir. 2009) (internal quotation marks and citations omitted).
Because Brent made no objection to the condition in the district court, we
review her argument for plain error. See United States v. Phipps, 319 F.3d
177, 192 (5th Cir. 2003). To establish plain error, the appellant must show a
forfeited error that is clear or obvious that affects her substantial rights.
Puckett v. United States, 556 U.S. 129, 135 (2009). An error is not clear or
obvious if it is subject to reasonable debate. Id. If the appellant makes such a
showing, this court has the discretion to correct the error but only if it seriously
affects the fairness, integrity, or public reputation of judicial proceedings. Id.
It can be gleaned from the record that the special condition imposed in
the instant case is reasonably related to the sentencing factors, particularly
deterrence and rehabilitation. See 18 U.S.C. § 3553(a)(2)(B), (a)(2)(D); United
States v. Caravayo, 809 F.3d 269, 275 (5th Cir. 2015). Furthermore, the
condition contains an exception allowing Brent to travel or reside in “the Flats”
with prior permission from her probation officer. We have recognized “that a
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No. 17-50241
modifiable condition such as this one works a less significant deprivation of
liberty than one which cannot be altered.” United States v. Fields, 777 F.3d
799, 806 (5th Cir. 2015). Accordingly, Brent has failed to show the district
court plainly erred in imposing the special condition of supervised release. See
United States v. Ellis, 720 F.3d 220, 228 (5th Cir. 2013). However, there is a
conflict between the written judgment and the oral pronouncement regarding
the exemption for having obtained the probation officer’s permission. This
exemption was announced in the oral imposition of sentence but not included
in the written judgment. Accordingly, the sentence is AFFIRMED IN PART
and VACATED IN PART, and the case is REMANDED to the district court for
amendment of the written judgment to conform to the oral pronouncement.
See FED. R. CRIM. P. 36.
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