FILED
                                                                        United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                            Tenth Circuit

                            FOR THE TENTH CIRCUIT                           September 30, 2020
                        _________________________________
                                                                           Christopher M. Wolpert
                                                                               Clerk of Court
 UNITED STATES OF AMERICA,

       Plaintiff - Appellee,

 v.                                                            No. 20-1017
                                                     (D.C. No. 1:18-CR-00003-RM-1)
 RUBEN LEOPOLDO DE LUNA,                                        (D. Colo.)

       Defendant - Appellant.
                      _________________________________

                            ORDER AND JUDGMENT*
                        _________________________________

Before HARTZ, BALDOCK, and CARSON, Circuit Judges.
                  _________________________________


       Defendant Ruben Leopoldo De Luna violated his supervised release and the district

court issued a warrant for his arrest. Law enforcement arrested Defendant on state drug

charges in March 2019. While in state custody, Defendant wrote a letter to the district

court requesting transfer to federal custody and enrollment in an in-patient substance abuse




       *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
and mental health program. He informed the court he had contacted several providers

seeking treatment and was taking his prescribed psychiatric medication.

      During his revocation and re-sentencing hearing, the district court sentenced

Defendant to eighteen months of imprisonment and three years of supervised release. In

sentencing Defendant, the district court imposed several special conditions of his

supervised released, including mandatory random blood tests to ensure Defendant

remained medication compliant. It did not, however, make a particularized finding

justifying this special condition and Defendant lodged no objection. Defendant timely

appealed.

      Because Defendant did not object to the condition, we review for plain error.

United States v. Martinez-Torres, 

, 1236 (10th Cir. 2015). Applying this

standard, we vacate and remand for resentencing.

      To meet our rigorous plain error standard, Defendant must show: “(1) error, (2)

that is plain, which (3) affects substantial rights, and which (4) seriously affects the

fairness, integrity, or public reputation of judicial proceedings.”

v. Mike, 

, 691-92 (10th Cir. 2011)). Both parties agree the district

court plainly erred by imposing random blood tests as a special condition without

justification. “‘[W]hen a court imposes a special condition that invades a fundamental

right or liberty interest, the court must justify the condition with compelling

circumstances.’” United States v. Malone, 

, 1327 (10th Cir. 2019)

(quoting United States v. Burns, 

, 1223 (10th Cir. 2014)).            “[A]

compelled physical intrusion beneath [an individual’s] skin and into his veins to obtain

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a sample of his blood” is an “invasion of bodily integrity [that] implicates an

individual's ‘most personal and deep-rooted expectations of privacy.’” Missouri v.

McNeely, 

, 148 (2013) (quoting Winston v. Lee, 

, 760

(1985)).

      Here, the record does not support the district court’s decision to impose the

blood testing requirement. The district court imposed the special condition requiring

blood testing, but failed to justify it as required by Malone. As the parties agree, the

condition affected the fairness and integrity of the proceedings because it could be

more severe than what the district court would have imposed had it fulfilled its

obligation to justify the special condition. See 

(citing

United States v. Doyle, 

, 736 (6th Cir. 2013)).

      For these reasons, we VACATE the district court’s sentence and REMAND for

resentencing in a manner consistent with this order and judgment.



                                            Entered for the Court


                                            Joel M. Carson III
                                            Circuit Judge




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