United States v. Mejia-Banegas

Case: 21-50459 Document: 00516295907 Page: 1 Date Filed: 04/26/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 26, 2022
No. 21-50459 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Jairo Armando Mejia-Banegas,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:21-CR-89-1
Before King, Jones, and Duncan, Circuit Judges.
Per Curiam:
Jairo Armando Mejia-Banegas pleaded guilty to illegal reentry in
violation of 8 U.S.C. § 1326. The district court sentenced him to 20 months
of imprisonment and one year of supervised release. The district court
imposed the mandatory and standard conditions of supervised release
contained in the standing order promulgated by the judges of the Western
District of Texas. Included in those conditions is standard condition 12,
which provides:
If the probation officer determines that the defendant poses a
risk to another person (including an organization), the
Case: 21-50459 Document: 00516295907 Page: 2 Date Filed: 04/26/2022
No. 21-50459
probation officer may require the defendant to notify the
person about the risk and the defendant shall comply with that
instruction. The probation officer may contact the person and
confirm that the defendant has notified the person about the
risk.
United States District Court for the Western District of Texas, Conditions
of Probation and Supervised Release, https://bit.ly/3ouyWtb (last visited
April 6, 2021). The Appellant contends this condition represents an
improper delegation of authority to the probation officers. We disagree, and
AFFIRM.
Because Mejia-Banegas did not object to the imposition of standard
condition 12, and because he had notice of the condition and the opportunity
to object in the district court, we review for plain error. See United States v.
Diggles, 957 F.3d 551, 559 (5th Cir. 2020) (en banc), cert. denied, 141 S. Ct.
825 (2020).
Mejia-Banegas argues that the district court plainly erred by imposing
this risk-notification condition because it improperly delegates to the
probation officer the authority to require him to notify people of any risk that
he may pose to them. He contends that although the district court may
delegate the details of a supervised release condition to the probation officer,
the district court may not delegate the authority to impose the condition
itself.
To show plain error, Mejia-Banegas “must show that (1) the district
court erred; (2) the error was clear and obvious; and (3) the error affected
his substantial rights.” United States v. Vargas¸21 F.4th 332, 334 (5th Cir.
2021) (citing Puckett v. United States, 556 U.S. 129, 135, 129 S. Ct. 1423, 1429
(2009)). This court recently held that imposing the same risk-notification
condition does not amount to plain error because any potential error is not
clear or obvious. United States v. Henderson, 29 F.4th 273, 276 (5th Cir.
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2022). We conclude that the district court committed no error, plain or
otherwise, by imposing the risk-notification condition. Cf. United States v.
Avalos-Sanchez, 975 F.3d 426 (5th Cir. 2020) (reviewing district court order
for plain error and concluding that district court did not err at all).
In general, “[p]robation officers have power ‘to manage aspects of
sentences and to supervise probationers and persons on supervised release
with respect to all conditions imposed by the court.’” United States v.
Barber, 865 F.3d 837, 839 (5th Cir. 2017) (quoting United States v. Franklin,
838 F.3d 564, 567 (5th Cir. 2016)). Nevertheless, “a district court cannot
delegate to a probation officer the ‘core judicial function’ of imposing a
sentence, ‘including the terms and conditions of supervised release.’” Id.(quoting Franklin, 838 F.3d at 568). In United States v. Huerta, 994 F.3d 711(5th Cir. 2021), this court demarcated “the dividing line between”
permissible and impermissible delegations of authority to probation officers
by distilling two guiding principles. Id. at 716. First, a district court cannot
surrender “‘the final say’ on whether to impose” a condition of supervised
release to a probation officer. Id. at 716-17 (quoting United States v. Medel-
Guadalupe¸987 F.3d 424, 431 (5th Cir. 2021)). Second, a district court
cannot leave to the probation officer details of a condition involving “a
significant deprivation of liberty.” Id. at 717 (citing Medel-Guadalupe,
987 F.3d at 431 and United States v. Martinez, 987 F.3d 432, 434, 436 (5th
Cir. 2021)).
The risk-notification condition does not impermissibly delegate the
court’s judicial authority to the probation officer. Under the risk-
notification condition, the probation officer does not unilaterally decide
whether the defendant is subject to the condition. Rather, the risk-
notification condition only allows the probation officer to direct when,
where, and to whom the defendant must give notice. United States v. Nash,
438 F.3d 1302, 1306 (11th Cir. 2006) (per curiam) (rejecting delegation
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challenge to prior version of risk-notification condition); United States v.
Porter, 842 F. App’x 547, 548 (11th Cir. 2021) (per curiam) (similarly
rejecting delegation challenge to current version of risk-notification
condition). That limited scope of authority neither leaves to the probation
officer the “final say” on whether to impose a condition of supervised
release nor implicates a significant deprivation of liberty. Moreover, the
United States Sentencing Guidelines specifically recommend the risk-
notification condition as a term of supervised release.
U.S.S.G. § 5D1.3(c)(12). Indeed, for nearly thirty years, no circuit court
decision challenged the validity of the risk-notification condition, a version
of which was first included in the Sentencing Guidelines in 1987. 1 U.S.
Sent’g Guidelines Manual§ 5B1.4(a)(13) (U.S. Sent’g
Comm’n 1987). Finally, if, in practice, an overzealous probation officer
used the risk-notification condition in a fashion that deprived a probationer
of liberty, that person could seek relief under Federal Rule of Criminal
Procedure 32.1. Thus, the district court did not err, much less plainly so, by
imposing the risk-notification condition. Cf. Nash, 438 F.3d at 1306; United
States v. Gibson, 998 F.3d 415, 423 (9th Cir. 2021) (holding that the current
risk-notification condition “is constitutional and may be imposed in
appropriate cases.”). 2
1
The United States Sentencing Commission amended the recommended risk-
notification condition in 2016. U.S. Sent’g Comm’n, Amendments to the
Sentencing Guidelines 49 (April 28, 2016), https://www.ussc.gov/sites/
default/files/pdf/amendment-process/reader-friendly-amendments/20160428_RF.pdf
(last visited April 14, 2022).
2
But see United States v. Boles, 914 F.3d 95, 111-12 (2d Cir. 2019) (vacating sentence
imposing current risk-notification condition and remanding to district court to clarify
scope); United States v. Cabral, 926 F.3d 687, 697-98 (10th Cir. 2019) (rejecting current
risk-notification condition because it improperly delegates power to a probation officer);
United States v. Evans, 883 F.3d 1154, 1163-64 (9th Cir. 2018) (rejecting prior risk-
notification condition as vague); United States v. Hill, 818 F.3de 342, 345 (7th Cir. 2016)
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This appeal is one of a series of cases that have raised the same
challenge to the risk-notification condition. All arise out of the Western
District of Texas, and all submit virtually identical briefing. 3 The surge of
cases from a single district is troubling. The Office of the Federal Public
Defender, which represents every defendant in this slew of cases, did not
object—not even once—in the district court to any of the now-challenged
sentences imposing the risk-notification condition. This amounts to a
deliberate bypass of the district courts, which should have been alerted to
the issue in the regular course of sentencing proceedings. District court
judges are well acquainted with the realities of probation that this
recommended condition invokes, and having been apprised of the issue,
could have added valuable insights to this court’s appellate work. Further,
on the off chance that this or similar conditions, which have been in effect
for decades, have suddenly become suspect, the district judges are
responsible for maintaining local rules and should have the initial
opportunity to consider the synergy among various supervised release
(holding that prior risk-notification condition is “[h]opelessly vague”); United States v.
Kappes, 782 F.3d 828, 849 (7th Cir. 2015) (vacating sentence imposing prior risk-
notification condition and remanding for clarification).
3
See, e.g., United States v. Marquez-Munoz, No. 21-51136 (5th Cir. 2021); United
States v. Almejo-Gradilla, No. 21-51132 (5th Cir. 2021); United States v. Amador-Guardado,
No. 21-51117 (5th Cir. 2021); United States v. Lopez-Mendoza, No. 21-51115 (5th Cir. 2021);
United States v. Almejo-Gradilla, No. 21-51106 (5th Cir. 2021); United States v. Lopez-
Mendoza, No. 21-51094 (5th Cir. 2021); United States v. Amador-Guardado, No. 21-51092
(5th Cir. 2021); United States v. Lozano, No. 21-51076 (5th Cir. 2021); United States v.
Nickerson, No. 21-51032 (5th Cir. 2021); United States v. Zahner, No. 21-51009 (5th Cir.
2021); United States v. Manriquez-Nunez, No. 21-50968 (5th Cir. 2021); United Sates v.
Marmolejo, No. 21-50946 (5th Cir. 2021); United States v. Alvarado-Arrendondo, No. 21-
50555 (5th Cir. 2021); United States v. Alvarado-Arrendondo, No. 21-50549 (5th Cir. 2021);
United States v. Chavira-Montanez, No. 21-50404 (5th Cir. 2021).
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conditions from an administrative as well as case-specific and legal
perspective.
AFFIRMED.
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King, Circuit Judge, concurring in the judgment:
I agree with the majority that the district court did not commit plain
error in imposing a risk-notification condition in this case. I therefore concur
in the judgment.
When considering a risk-notification condition identical to the one at
issue here, we recently held that since “we have not yet addressed [the merits
of] . . . whether the instant notification condition constitutes an improper
delegation of judicial authority,’ the district court’s error, if any, was neither
clear nor obvious” and therefore the district court could not have plainly
erred. United States v. Henderson, 29 F.4th 273, 276 (5th Cir. 2022)
(alteration in original) (quoting United States v. Johnson, 777 F. App’x 754,
754 (5th Cir. 2019)). That is also true here, and imposition of the selfsame
condition is still not plain error.
The court thus does not need to reach the merits question to decide
this case. And in light of the reasoned disagreement on its proper answer,
which has already split the circuits, see ante, at 4 & n.2, I would wait for
another day (and a different vessel that presents the issue on de novo review)
before deciding whether the risk-notification condition is an invalid
delegation of judicial power.
I respectfully concur in the judgment.
7