BACHARACH, Circuit Judge.
Mr. Jesus Manuel Muñoz was charged with possession with intent to distribute marijuana. He pleaded guilty and was sentenced to time served or thirteen days, whichever was less, and two years of supervised release. The term of the supervised release included twelve "standard" conditions of supervised release and two "special" conditions. On appeal, Mr. Muñoz raises substantive and procedural challenges to twelve of the fourteen conditions. Rejecting these challenges, we affirm.
Mr. Muñoz raises substantive challenges to each of the twelve conditions in dispute. Some of these challenges were raised in district court, but some are new.
On appeal, Mr. Muñoz challenges seven conditions at least in part on grounds not presented in district court. For these challenges, we apply the plain-error standard. United States v. Walser, 275 F.3d 981, 987 (10th Cir.2001). Under the plain-error standard, Mr. Muñoz must show that (1) the district court erred, (2) the error was plain, (3) the error affected substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Harris, 695 F.3d 1125, 1130 (10th Cir.2012). An error is "plain" if it is "clear or obvious." Morales-Fernandez v. INS, 418 F.3d 1116, 1124 (10th Cir.2005). In applying this standard, we reject each of Mr. Muñoz's new arguments.
Mr. Muñoz argues that this condition is impermissibly vague because it does not define "[t]he terms `regularly' and `other acceptable reasons.'"
We need not decide whether the district court erred because any possible error would not have been plain. The condition is identical to one of the standard conditions recommended in the sentencing guidelines for supervised release. See U.S. Sentencing Guidelines Manual § 5D1.3(c)(5) (2014). In light of this recommendation, district courts impose this condition with virtual uniformity. See United States v. Truscello, 168 F.3d 61, 63-64 (2d Cir.1999). Though this condition has been imposed countless times, we have never addressed a vagueness challenge to the supervised release term "regularly" or "other acceptable reasons." In light of the lack of precedent invalidating this condition, we conclude that the district court did not commit an obvious error (if any). See United States v. Turrietta, 696 F.3d 972, 981 (10th Cir.2012) ("Since a district court cannot be faulted for failing to act on its own motion where the law is unsettled, a matter of first impression will generally preclude a finding of plain error."). As a result, this challenge fails under the plain-error standard.
In district court, Mr. Muñoz objected to these two conditions on the ground that they did not allow for religious and other legal uses of alcohol. On appeal, Mr. Muñoz does not pursue this objection. Instead, he makes three new arguments:
Because these arguments are new, we apply the plain-error standard. Under this standard, Mr. Muñoz's arguments fail as a matter of law.
Mr. Muñoz notes that the first condition requires him to avoid "excessive alcohol use," while the second prohibits consumption of any alcohol. As Mr. Muñoz points out, these requirements are inconsistent. But the district court noted the inconsistency and orally explained that the prohibition on alcohol consumption took precedence. See R. vol. III, at 23-24.
The oral condition controls over the written. United States v. Villano, 816 F.2d 1448, 1450-51 (10th Cir.1987) (en banc). Thus, the inconsistency between the written and oral conditions did not affect Mr. Muñoz's substantial rights. See United States v. Harris, 695 F.3d 1125, 1130 (10th Cir.2012) (explaining that an error is plain only if it affects substantial rights). Because the inconsistency did not affect Mr. Muñoz's substantial rights, we reject this challenge under the plain-error standard.
Mr. Muñoz complains about the vagueness of three terms:
Use of these terms did not constitute plain error.
As noted above, the written condition prohibits excessive use of alcohol. Mr. Muñoz complains that the modifier "excessive" is vague because of uncertainty about how much alcohol is too much. See United States v. Kappes, 782 F.3d 828, 849 (7th Cir.2015) ("The condition that the defendant `refrain from excessive use of alcohol,' is vague because `excessive use' is not defined."). But the district court explained that Mr. Muñoz could not drink any alcohol. R. vol. III, at 23-24. Thus, any vagueness in the word "excessive" would not have affected Mr. Muñoz's substantial rights.
Mr. Muñoz also complains that the words "alcohol" and "intoxicants" are vague because they could include over-the-counter medications, vanilla extract, rubbing alcohol, coffee, cigarettes, sugar, and chocolate. Two courts have expressed concern over similar terms. For example, the Seventh Circuit has criticized the term "mood altering substance" because it could include coffee, cigarettes, sugar, and chocolate. United States v. Siegel, 753 F.3d 705, 713 (7th Cir.2014); see also United States v. Downs, 784 F.3d 1180, 1181 (7th Cir.2015) (criticizing the phrase "for the purpose of intoxication" because it is unclear whether the phrase is limited to alcoholic beverages or includes other substances). Similarly, the Ninth Circuit balked at a condition prohibiting consumption of substances intended to mimic the effects of a controlled substance, noting that this condition could include chocolate or coffee. United States v. Aquino, 794 F.3d 1033, 1037 (9th Cir.2015). But no federal appeals court has invalidated a supervised release condition prohibiting the consumption of alcohol or intoxicants.
In our view, the district court did not err, for we use common sense to guide our interpretation of supervised release conditions. See United States v. Mike, 632 F.3d 686, 701 (10th Cir.2011) (opting for a "commonsense" interpretation of release conditions over an interpretation that is "overly technical"). With the gloss of common sense, the condition was not too vague. As a result, we reject Mr. Muñoz's challenge under the plain-error standard.
For the first time, Mr. Muñoz argues on appeal that this condition is "superfluous." But he does not point to any opinions invalidating a supervised release condition because it is superfluous. Thus, this challenge fails under the plain-error standard. See United States v. Ibarra-Diaz, 805 F.3d 908, 931 n. 14 (10th Cir. 2015) (rejecting an appeal point under the plain-error standard because the defendant failed to cite any supporting cases from our court or the Supreme Court).
Mr. Muñoz argues on appeal that the terms "frequent" and "place" are vague. Because he did not make this objection in district court, our review is for plain error.
On appeal, Mr. Muñoz argues for the first time that this condition should be limited to searches of his home and automobile because workplace searches would make him less desirable as an employee. For the sake of argument, we assume that the condition would affect Mr. Muñoz's desirability as an employee. But Mr. Muñoz has not pointed to any case law supporting his challenge; thus, we cannot regard an error (if any) as obvious under the plain-error standard. See Part I(A)(2)(c) (citing authority). This challenge is rejected.
Mr. Muñoz argues on appeal that the condition is too vague. This argument is new and reviewable under the plain-error standard.
In our view, an error (if any) would not have been obvious under the plain-error standard. This condition is recommended in the sentencing guidelines, and Mr. Muñoz does not identify any cases questioning this condition. U.S. Sentencing Guidelines Manual § 5D1.3(c)(11) (2014). Instead, he poses three questions:
The answers seem obvious, for most individuals would know the meaning of the terms "questioned," "law enforcement officers," and "arrested." But even if we generously assume that the court erred, we could reverse only if the error was obvious.
Mr. Muñoz challenged this condition in district court.
In this appeal, Mr. Muñoz renews challenges to eight of the conditions. In reviewing these challenges, we apply the abuse-of-discretion standard. United States v. Dougan, 684 F.3d 1030, 1034 (10th Cir.2012). The district court abuses its discretion when a ruling is based on a clearly erroneous finding of fact, an erroneous conclusion of law, or a clear error of judgment. United States v. Batton, 602 F.3d 1191, 1196 (10th Cir.2010). We conclude that the district court did not abuse its discretion by imposing the eight conditions.
Mr. Muñoz objected to this condition, arguing that it compromises his Fifth Amendment right against self-incrimination. We disagree.
Depending on what is asked, Mr. Muñoz might be able to invoke his Fifth Amendment privilege against self-incrimination. Minnesota v. Murphy, 465 U.S. 420, 426, 427-28, 435 n. 7, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984). This condition does not prevent Mr. Muñoz from asserting
Mr. Muñoz objected to this condition on the grounds that
We review the district court's imposition of this condition for an abuse of discretion. We conclude that the district court acted within its discretion.
According to Mr. Muñoz, the words "support" and "dependent" can be ambiguous in particular circumstances. But the court could reasonably impose conditions involving some measure of flexibility:
United States v. Gallo, 20 F.3d 7, 12 (1st Cir.1994).
Though the terms "dependent" and "support" may involve ambiguity in particular circumstances, the court could reasonably assume that Mr. Muñoz would understand what was required. For example, a "dependent" is ordinarily someone who relies on a family member for financial support. See, e.g., New Oxford American Dictionary 466 (3d ed.2010) (defining "dependent" as "a person who relies on another, [especially] a family member, for financial support"). Mr. Muñoz has not supplied an alternative definition of "dependent," and we do not believe there is room for confusion.
Nor are we troubled by the term "support." Mr. Muñoz argues that the term could require him to "provid[e] financial assistance, provid[e] physical assistance, and giv[e] encouragement." See Appellant's Opening Br. at 22 (quoting online Oxford English Dictionary). But common sense dictates that Mr. Muñoz cannot be penalized for failing to encourage dependents
We also reject Mr. Muñoz's contention that his supervised release could be unjustly revoked if he fails to provide the required support, even if he tries in good faith to provide that support. The contention defies common sense, for the condition is naturally understood to require only financial support that Mr. Muñoz is able to provide. See United States v. Mike, 632 F.3d 686, 701 (10th Cir.2011) (calling for "commonsense" interpretation of conditions).
Finally, we reject Mr. Muñoz's challenge to the phrase "he or she." Mr. Muñoz is a male and the clause "or she" was unnecessary. But the clause did not affect the substance of the condition. As a result, the district court did not abuse its discretion in using the phrase "he or she."
Mr. Muñoz argues that this condition imposes strict liability because he would be in violation if he is unable to find a job or is fired. In our view, the court acted within its discretion.
Mr. Muñoz's interpretation is literal, requiring him to do something that might not be within his control. The court could reasonably interpret the condition differently. Many conditions might be reasonable but impossible to perform in given circumstances. For example, a parent might be unable to pay child support at some point in the future, but that possibility does not prevent entry of an order for child support. Likewise, the district court had the discretion to require employment even though Mr. Muñoz might not get hired or might get fired. See United States v. Spencer, 640 F.3d 513, 521 (2d Cir.2011) ("A releasee cannot be imprisoned for failing to comply with an impossible condition."). Thus, the district court did not abuse its discretion by requiring Mr. Muñoz to work unless excused by the probation officer for acceptable reasons.
Mr. Muñoz again raises an impossibility challenge, arguing that he could be punished if he is unable to fulfill this condition. We hold that the district court did not abuse its discretion in imposing this condition because it does not require the impossible of Mr. Muñoz.
The most sensible understanding of this condition is that Mr. Muñoz must give notice of an event only if he foresees it. See United States v. Mike, 632 F.3d 686, 701 (10th Cir.2011) (favoring a "commonsense" reading of conditions of supervised release); see also United States v. Toliver, 183 Fed.Appx. 745, 751 (10th Cir.2006) (unpublished) ("[I]f [the defendant] was unaware that he would be evicted ten days in advance of that eviction, the condition clearly obligated [the defendant] to notify his probation officer after the eviction."); accord United States v. Spencer, 640 F.3d 513, 521 (2d Cir.2011) ("[This condition], by its terms, applies only if it was possible for [the defendant] to notify his probation officer of a change in employment `at least ten
Mr. Muñoz argues that this condition violates his constitutional rights of association and is too difficult to satisfy.
According to Mr. Muñoz, the condition infringes on his rights to associate with family members and with other convicts. We disagree.
In addressing his right to familial association, Mr. Muñoz contends that members of his family might have felony convictions. We have held that a condition of supervised release can sometimes violate the right of familial association, but only when the condition would actually restrict association with a family member. See, e.g., United States v. Bear, 769 F.3d 1221, 1229 (10th Cir.2014) ("[R]estrictions on a defendant's contact with his own children are subject to stricter scrutiny."); United States v. Burns, 775 F.3d 1221, 1222-23 (10th Cir.2014) (holding that the district court could restrict a father's contact with his child only if the circumstances were compelling). But Mr. Muñoz has not alleged that he has any family members with felony convictions.
Mr. Muñoz relies on two Ninth Circuit opinions, which invalidated conditions preventing interaction with the defendant's children and a "disruptive group." See United States v. Wolf Child, 699 F.3d 1082, 1100 (9th Cir.2012) (children); United States v. Soltero, 510 F.3d 858, 867 (9th Cir.2007) (disruptive groups). We doubt that Mr. Muñoz's alleged constitutional interest in associating with other convicted felons is as strong as his interest in associating with his own children or with organized groups. And to the extent that Mr. Muñoz does have an interest in associating with other felons, "[t]he existence of a constitutionally protected liberty interest. . . does not render impermissible any condition that would interfere with [it]." United States v. Davis, 452 F.3d 991, 995 (8th Cir.2006). Keeping Mr. Muñoz away from other convicted felons is a sensible way to reduce the risk of recidivism, which is a legitimate purpose of supervised release even if the condition encroaches on a constitutionally protected interest. See id.; 18 U.S.C. §§ 3553(a)(2)(C), 3583(c).
Mr. Muñoz also stated to the district court that because so many Americans have felony convictions, it would be difficult to avoid interaction with a convicted felon. Yet if Mr. Muñoz does have an interaction with a convicted felon, Mr. Muñoz would not necessarily run afoul of this condition, for associational conditions do
Mr. Muñoz challenges this condition based on vagueness and deprivation of due process.
First, Mr. Muñoz argues that the condition is vague because the phrase "at home or elsewhere" could be interpreted to allow the probation officer to visit anywhere at any time.
Mr. Muñoz apparently assumes that this interpretation makes the condition too harsh. But even if the condition is considered harsh, it would not be vague. Indeed, in other cases, we have held that the district court enjoys discretion to impose similar conditions. See United States v. White, 244 F.3d 1199, 1208 (10th Cir.2001) (upholding a similar condition and noting that suspicionless "probationary searches are not uncommon"); United States v. Hanrahan, 508 F.3d 962, 971 (10th Cir. 2007) (upholding a condition requiring the defendant to "submit to a search of his person, property, or automobile under his control to ensure compliance with all conditions of probation").
Second, Mr. Muñoz argues that the condition prevents him from challenging the confiscation of property on due-process grounds. This argument is incorrect. Mr. Muñoz can challenge the confiscation, but he must first allow the probation officer to confiscate contraband observed in plain view.
We have upheld supervised release conditions requiring defendants to submit to suspicionless searches. United States v. Hanrahan, 508 F.3d 962, 970-71 (10th Cir. 2007); United States v. White, 244 F.3d 1199, 1208 (10th Cir.2001). As in those cases, the district court allowed suspicionless searches of Mr. Muñoz. He can challenge the searches based on due process, just as the defendants could in our prior cases. But Mr. Muñoz must first allow the search and confiscation of contraband seen in plain view. In light of our precedents, the court acted within its discretion. See Minnesota v. Dickerson, 508 U.S. 366, 375, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993) ("[I]f police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right of
Finally, Mr. Muñoz argues that this condition is superfluous because another condition already requires submission to searches "conducted in a reasonable manner and at a reasonable time." Appellant's Opening Br. at 34. But these conditions contain different requirements. With the combination of these two conditions, the probation officer can
Even if one of these conditions is superfluous, Mr. Muñoz does not explain why that would constitute an abuse of discretion. In our view, the court acted within its discretion in imposing the condition.
Mr. Muñoz challenges this condition on two grounds:
These arguments do not suggest an abuse of discretion.
This condition is recommended in the sentencing guidelines. U.S. Sentencing Guidelines Manual § 5D1.3(c)(11) (2014). The Second Circuit has called this condition a "`basic administrative requirement[]' that [is] `necessary to supervised release.'" United States v. Thomas, 299 F.3d 150, 154 (2d Cir.2002) (quoting United States v. Truscello, 168 F.3d 61, 63, 64 (2d Cir.1999)).
Mr. Muñoz argues that circumstances may prevent him from complying. But a common-sense interpretation would prevent revocation if Mr. Muñoz were unable to notify the probation officer. See United States v. Spencer, 640 F.3d 513, 521 (2d Cir.2011) ("A releasee cannot be imprisoned for failing to comply with an impossible condition."). As a result, the district court acted within its discretion when imposing this condition.
Mr. Muñoz argues that
We need not decide whether the condition would be overbroad if it were a strict liability condition because the condition does not impose strict liability. Two circuits have rejected this challenge. United States v. Armour, 804 F.3d 859, 868 (7th Cir.2015); United States v. Phillips, 704 F.3d 754, 768 (9th Cir.2012). For example, the Ninth Circuit explained:
Phillips, 704 F.3d at 768 (emphasis in original).
The most reasonable interpretation of the condition is that it prohibits Mr. Muñoz from going to places only if he knows that drugs are used or sold there. As a result, the district court acted within its discretion in imposing this condition.
Mr. Muñoz also urges vacatur of the standard conditions on grounds that the district court (1) did not make any supportive findings and (2) erroneously thought it had to impose all of the standard conditions. We disagree.
The district court was not required to make specific findings for the standard conditions. "Our precedents unambiguously require supporting findings when courts impose special conditions of supervised release." United States v. Burns, 775 F.3d 1221, 1223 (10th Cir.2014). But we held in United States v. Martinez-Torres that supportive findings are unnecessary when the conditions are standard:
795 F.3d 1233, 1237 (10th Cir.2015). There we explained that the standard conditions include those recommended under the guidelines. Id.
According to Mr. Muñoz, the district court should have made particularized findings when adopting the conditions recommended under the guidelines. But we held in Martinez-Torres that particularized findings are unnecessary for the conditions recommended under the guidelines. Id.
Mr. Muñoz also argues that the district court mistakenly thought our precedents required it to impose the standard conditions. We reject this argument.
Mr. Muñoz's argument is based on a single sentence by the district court: "I have followed my understanding of Tenth Circuit laws in imposing the conditions." R. vol. III, at 34. In context, however, the district court was apparently acknowledging that the Tenth Circuit had not yet addressed the need for particularized findings when imposing standard conditions. Based on the absence of precedent requiring particularized findings, the court deferred to the government's request to impose the standard conditions. But the
In these circumstances, we reject Mr. Muñoz's procedural challenges to the standard conditions.
We affirm.
