X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.

Before SMITH, GRAVES, and HO, Circuit Judges. JERRY E. SMITH, Circuit Judge: Rolando Hinojosa was convicted of money laundering and two major drug offenses involving multiple kilograms of heroin and cocaine. The district court sentenced him to, among other things, a term of supervised release (“SR”). But the release comes with a string attached: As a special condition, Hinojosa must submit to substance-abuse testing, and he cannot tamper with the testing methods. Hinojosa informs us that there was no good reason to require testing—and that the anti-tampering rule must be eliminated. We disagree and affirm. I. The court sentenced Hinojosa to a lengthy term in prison, followed by SR. At sentencing, the court imposed the “[s]tandard terms and conditions of [SR], along with substance abuse testing” (emphasis added). Hinojosa did not object. The written judgment stated the condition as follows: You must submit to substance-abuse testing to determine if you have used a prohibited substance, and you must pay the costs of the testing if financially able. You may not attempt to obstruct or tamper with the testing methods. A. Hinojosa contends that the oral pronouncement and written judgment conflict, because the former said nothing about tampering. At sentencing, Hinojosa necessarily lacked an opportunity to object on that basis. Accordingly, we review for abuse of discretion. See United States v. Warden, 291 F.3d 363, 365 n.1 (5th Cir. 2002). If the oral pronouncement and written judgment conflict, the former controls. United States v. De La Pena-Juarez, 214 F.3d 594, 601 (5th Cir. 2000). But not all differences are conflicts. “The key determination is whether the discrepancy . . . is a conflict or merely an ambiguity that can be resolved by reviewing the rest of the record.” United States v. Mireles, 471 F.3d 551, 558 (5th Cir. 2006) (emphases added). If the written judgment broadens the orally pronounced requirements, a conflict exists. Id. There is no conflict. The district court mentioned the requirement of testing at sentencing—it just failed to note that Hinojosa couldn’t tamper with the testing apparatus. Prohibiting Hinojosa from tampering cannot somehow “conflict” with a requirement that he be tested. That prohibition is a logical piece of any substance-abuse test. “The written judgment simply clarified the meaning of [the condition] by specifying what the [testing] was to entail.” United States v. Truscello, 168 F.3d 61, 63 (2d Cir. 1999). Our caselaw lines up in support. In Warden, 291 F.3d at 364, for exam-ple, the court orally imposed a condition that the defendant participate in treatment and counseling but did not state who would pay for it. Yet the writ-ten judgment placed the cost on the defendant. Id. We affirmed, finding only an ambiguity. Id. at 365. “[T]he requirement that [the defendant] bear the costs of the ordered treatments [was] clearly consistent with the district court’s intent that he attend drug treatment, sex offender, and anger management counseling[.]“[1]The same holds here: The ban on tampering is “clearly consistent” with the testing requirement. Hinojosa suggests it’s problematic that the condition was “not written exactly the same way” as the condition articulated in U.S. SENTENCING GUIDE-LINES MANUAL (“U.S.S.G.”) § 5D1.3(d)(4).[2] But he does not cite any authority that requires regurgitation, because there is none. Indeed, that subsection of the Guidelines is a policy statement, so the condition needed only to be “consistent with” it—not its carbon copy. 18 U.S.C. § 3583(d)(3). B. Hinojosa also urges that it is unreasonable that he should have to submit to substance-abuse testing. He points out that his marihuana use is decades old, and he downplays the finding of the presentence investigation report that he used cocaine about two years before his arrest. We review only for plain error. The court orally imposed the testing condition, which gave Hinojosa every opportunity to object to its propriety. He didn’t take the bait.[3] “Naturally, the first prong of plain-error analysis is the requirement of an error.” United States v. Sanders, 952 F.3d 263, 282 (5th Cir. 2020). There is none. “A district court has wide discretion in imposing terms and conditions of SR.”[4] But three requirements must be met to impose a special condition. See 18 U.S.C. § 3583(d)(1)–(3). First, the condition must be reasonably related to one of four factors in § 3553(a): (1) the nature and circumstances of the offense and the history and characteristics of the defendant; (2) the adequate deterrence of criminal conduct; (3) the protection of the public from further crimes of the defendant; and (4) the provision of needed educational or vocational training, medical care, or other correctional treatment. Second, the condition cannot impose any greater deprivation of liberty than is reasonably necessary to advance deterrence, protect the public from the defendant, and advance the defendant’s correctional needs. Third, the condition must be consistent with any pertinent policy statements issued by the Sentencing Commission. Hathorn, 920 F.3d at 984 (cleaned up); see 18 U.S.C. § 3583(d)(1)–(3). District courts should make factual findings as to special conditions, but even absent them, we affirm if the rationale “can be inferred after an examination of the record.”[5] Here the court’s reasons are easily intuited. “The court can require participation in a substance abuse program if it has reason to believe that the defendant abuses controlled substances.” United States v. Cothran, 302 F.3d 279, 290 (5th Cir. 2002) (citing U.S.S.G. § 5D1.3(d)(4)). The court had “reason to believe” that Hinojosa does so—and it imposed a less onerous requirement of testing, not a treatment program as in Cothran. Indeed, just two years before his arrest, Hinojosa used cocaine; he’d used marihuana earlier in life; and he was being sentenced for offenses that involved large quantities of drugs. We affirmed on similar facts in United States v. Torres-Pindan, 400 F. App’x 839, 841 (5th Cir. 2010) (per curiam). The testing condition is therefore related to, among other things, “the nature and circumstances of [Hinojosa's] offense,” his personal “history and characteristics,” and “the need . . . to afford adequate deterrence.” 18 U.S.C. § 3553(a). There is no indication that the condition deprives Hinojosa of his liberty more than necessary, and, for reasons already described, the condition is consistent with the relevant policy statements. See id. § 3583(d)(1)–(3). Accordingly, “[t]here is no error, plain or otherwise.”[6] AFFIRMED.

 
Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.

More From ALM

With this subscription you will receive unlimited access to high quality, online, on-demand premium content from well-respected faculty in the legal industry. This is perfect for attorneys licensed in multiple jurisdictions or for attorneys that have fulfilled their CLE requirement but need to access resourceful information for their practice areas.
View Now
Our Team Account subscription service is for legal teams of four or more attorneys. Each attorney is granted unlimited access to high quality, on-demand premium content from well-respected faculty in the legal industry along with administrative access to easily manage CLE for the entire team.
View Now
Gain access to some of the most knowledgeable and experienced attorneys with our 2 bundle options! Our Compliance bundles are curated by CLE Counselors and include current legal topics and challenges within the industry. Our second option allows you to build your bundle and strategically select the content that pertains to your needs. Both options are priced the same.
View Now
September 18, 2024 - September 19, 2024
Dallas, TX

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More
October 15, 2024
Dallas, TX

The Texas Lawyer honors attorneys and judges who have made a remarkable difference in the legal profession in Texas.


Learn More
April 08, 2025 - April 09, 2025
Chicago, IL

Join General Counsel and Senior Legal Leaders at the Premier Forum Designed For and by General Counsel from Fortune 1000 Companies


Learn More

Prominent mid-Atlantic law firm with multiple regional office locations seeks a legal practice assistant (LPA) for our Boca Raton, FL. Offic...


Apply Now ›

Florida International University College of Law, South Florida s public law school, invites applicants for a contract position in Legal Skil...


Apply Now ›

LEGAL PRACTICE ASSISTANT- NEW JERSEY OFFICE: Prominent mid-Atlantic law firm with multiple regional office locations seeks a Legal Practice...


Apply Now ›