Elawyers Elawyers
Virginia| Change

United States v. Hidalgo, 21-60208 (2021)

Court: Court of Appeals for the Fifth Circuit Number: 21-60208 Visitors: 11
Filed: Oct. 06, 2021
Latest Update: Oct. 07, 2021
Case: 21-60208      Document: 00516044846         Page: 1    Date Filed: 10/06/2021

              United States Court of Appeals
                   for the Fifth Circuit                              United States Court of Appeals
                                                                               Fifth Circuit

                                                                       October 6, 2021
                                  No. 21-60208                          Lyle W. Cayce
                                Summary Calendar                             Clerk

   United States of America,



   Taylor Hidalgo,


                  Appeal from the United States District Court
                    for the Southern District of Mississippi
                           USDC No. 3:20-CR-100-1

   Before Barksdale, Costa, and Engelhardt, Circuit Judges.
   Per Curiam:*
          In 2019, Taylor Hidalgo pleaded guilty to failing to register as a sex
   offender, in violation of 18 U.S.C. § 2250(a). He was sentenced to, inter alia,
   19 months’ imprisonment and five years’ supervised release. The district
   court imposed special conditions of supervised release prohibiting, inter alia,

            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   opinion should not be published and is not precedent except under the limited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: 21-60208     Document: 00516044846           Page: 2   Date Filed: 10/06/2021

                                    No. 21-60208

   Hidalgo from: possession or perusal of material that depicts or describes
   “sexually explicit conduct” or “child pornography”; possessing or using a
   computer or other internet connection device to access the internet (except
   with prior approval of probation officer in connection with authorized
   employment); and any unsupervised contact with children under the age of
   18 (except unanticipated or incidental contact or in the presence of an
   approved adult). He did not appeal.
          The Government moved to revoke Hildalgo’s probation in January
   2021, asserting he violated the above-described special conditions, as well as
   two mandatory conditions proscribing possessing a firearm and using a
   controlled substance.    Hidalgo admitted violating the two mandatory
   conditions but contested violating the special conditions, asserting: he only
   possessed an iPhone and created Social Media accounts; the court did not
   consider the minor was a family member and his original offense was six years
   ago; and the alleged violation was a private act not involving or harming
   others. The district court revoked his probation and sentenced him to, inter
   alia, 14 months’ imprisonment and eight years’ supervised release. The
   special conditions in the judgment for his underlying conviction were
          Hidalgo contests the above-described three special conditions
   imposed at his original sentencing and reimposed upon revocation of his
   supervised release. He maintains revocation of supervised release cannot be
   based on these special conditions because they are unconstitutional as
   applied. Further, he challenges those special conditions’ being reimposed.
          Because Hidalgo did not object to these special conditions at the time
   of sentencing on his original conviction, our court can consider his challenge
   “only on an ‘as applied’ basis and only as they pertain to [our] review of his
   revocation proceeding”. United States v. Brigham, 
569 F.3d 220
, 232 (5th

Case: 21-60208      Document: 00516044846          Page: 3   Date Filed: 10/06/2021

                                    No. 21-60208

   Cir. 2009) (citing United States v. Locke, 
482 F.3d 764
, 766–67 (5th Cir.
   2007)). Revocation decisions are reviewed for abuse of discretion; legal or
   constitutional challenges, de novo. 
          As noted in part, rulings on preserved challenges to conditions of
   supervised release are reviewed for abuse of discretion. United States v.
838 F.3d 597
, 604 (5th Cir. 2016). A party can preserve error by
   informing the court of the desired action or objecting to the court’s action
   and stating the grounds for the objection. Holguin-Hernandez v. United
140 S. Ct. 762
, 764 (2020). Preservation of error does not “require
   an objecting party to use any particular language or even to wait until the
   court issues its ruling”. 
Id. at 766
. The core question for determining
   whether an error was preserved is “simply whether the claimed error was
   ‘brought to the court’s attention’”. 
 (quoting Fed. R. Crim. P. 52 (b)).
          As discussed supra, Hidalgo admitted for the revocation proceeding
   to violating two mandatory conditions of his supervised release, which he
   does not contest in this appeal. His admitted possession of a firearm, in
   violation of federal law, required the mandatory revocation of his supervised
   release, even without considering his violation of the three challenged special
   conditions. See 18 U.S.C. § 3583(g)(2); United States v. Garner, 
969 F.3d 550
   551–52 (5th Cir. 2020) (explaining revocation mandatory when defendant
   “possesses a firearm in violation of federal law or a condition of supervised
   release”). Therefore, the decision to revoke Hidalgo’s supervised release
   was mandatory and not an abuse of discretion. See United States v. Jang, 
574 F.3d 263
, 266 (5th Cir. 2009) (explaining evidence of mandatory-condition
   violation enough for revocation).
          But, because Hidalgo’s violation of these challenged special
   conditions influenced the sentence imposed on revocation, our court
   considers his “as applied” assertions. Special condition 11, prohibiting

Case: 21-60208      Document: 00516044846          Page: 4   Date Filed: 10/06/2021

                                    No. 21-60208

   Hidalgo’s possessing material depicting sexually explicit conduct, was
   reasonably related to the history and circumstances of his underlying sex
   offense of sending pornographic images to a minor and did not involve a
   greater deprivation of liberty than is reasonably necessary to carry out the
   purposes of deterrence and public protection. See 18 U.S.C. § 3583(d)(1)
   (additional conditions of supervised release allowed when reasonably related
   to 18 U.S.C. § 3553 sentencing factors); 18 U.S.C. § 3553(a)(1), (a)(2)(B)-
   (D) (sentencing factors include: deterrence; public protection; and, training,
   medical care, or treatment necessary for defendant); United States v.
809 F.3d 269
, 273 (5th Cir. 2015) (explaining special condition
   must be “reasonably related to § 3553’s factors” and not a “greater
   deprivation of liberty than is reasonably necessary to achieve the three
   statutory goals of § 3583(d)(2)”). This condition is not unconstitutional as
   applied to Hidalgo. See United States v. Abbate, 
970 F.3d 601
, 603–06 (5th
   Cir. 2020) (explaining restricting possession of material depicting sexually
   explicit conduct reasonable when defendant’s crime is “sexual in nature”);
   see also United States v. Phipps, 
319 F.3d 177
, 181, 192–93 (5th Cir. 2003) (on
   plain-error review, explaining supervised-release condition prohibiting
   possession of sexually oriented or stimulating materials did not violate due
          Regarding challenged special condition four, a ban on internet use
   must be “narrowly tailored either by scope or by duration”. United States v.
788 F.3d 392
, 399 (5th Cir. 2015). This special condition, limiting
   Hidalgo’s access to the internet, was conditional, allowing him to seek
   approval from the probation officer for employment purposes. The condition
   was also for a limited duration of five years and was reasonably related to his
   original offense leading to his sex-offender status (sending pornographic
   images and videos to 14-year-old-girl). This condition is, therefore, not
   unconstitutional as applied to Hidalgo. See United States v. Paul, 
274 F.3d
Case: 21-60208      Document: 00516044846          Page: 5    Date Filed: 10/06/2021

                                    No. 21-60208

   155, 167–70 (5th Cir. 2001) (holding three-year ban on computers and
   internet connection devices reasonable in relation to defendant’s child
   pornography offense); Locke, 
482 F.3d at 768
 (explaining internet prohibition
   discourages recidivism and protects public).
          The final challenged special condition, number nine, barring Hidalgo
   from unsupervised contact with children under 18 years old, is not
   unconstitutional as applied to Hidalgo in the light of his underlying sex
   offense of sending pornographic material to a minor. See Paul, 274 F.3d at
   165–67 (affirming prohibition against direct and indirect contact with minors
   in child-pornography possession action); United States v. Fields, 
777 F.3d 799
   801–07 (5th Cir. 2015) (affirming condition limiting defendant’s contact with
   minors after repeated convictions for failing to register as sex offender).
          In addition, Hidalgo maintains the reimposition of these three special
   conditions on revocation was unreasonable. His objections for the revocation
   proceeding about these special conditions imposed on original sentencing
   were sufficient to bring to the district court’s attention the issue of
   reimposing such conditions.
          For the revocation proceeding, the court considered the § 3553(a)
   framework in ordering these special conditions to determine what was
   necessary. See Caravayo, 809 F.3d at 273 (“A special condition must also
   ‘involve no greater deprivation of liberty than is reasonably necessary’ to
   achieve the latter three statutory goals of § 3553(a)(2).” (citation omitted)).
   The court considered the nature and circumstances of the original offense,
   Hidalgo’s history and characteristics, protection of the public, deterrence,
   and any needed treatment or education, before reimposing the three special
   conditions ordered by the original sentencing court. Therefore, there was no
   abuse of discretion in reimposing these special conditions.

Source:  CourtListener

Can't find what you're looking for?

Post a free question on our public forum.
Ask a Question
Search for lawyers by practice areas.
Find a Lawyer