United States v. Alejandro Figueroa-Munoz , 592 F. App'x 336 ( 2015 )

Case: 14-50334 Document: 00512938963 Page: 1 Date Filed: 02/18/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-50334 FILED
Summary Calendar February 18, 2015
Lyle W. Cayce
Clerk
UNITED STATES OF AMERICA,
Plaintiff-Appellee
v.
ALEJANDRO FIGUEROA-MUNOZ,
Defendant-Appellant
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:13-CR-2365
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Alejandro Figueroa-Munoz (Figueroa) pleaded guilty to illegal reentry to
the United States subsequent to deportation and to misuse of a passport. For
the first time on appeal, he argues that the district court plainly erred by
imposing a term of intermittent confinement as a condition of his non-reporting
supervised release. The Government moves for summary affirmance, or,
alternatively, for an extension of time within which to file a brief, contending
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 14-50334
that Figueroa’s argument is foreclosed by this court’s recent unpublished
decision in United States v. Arciniega-Rodriguez, 581 F. App’x 419 (5th Cir.
2014).
Because the district court announced the challenged condition at
sentencing and Figueroa did not object, our review is for plain error only. See
United States v. Bishop, 603 F.3d 279, 280 (5th Cir. 2010). Under plain error
review, relief is not warranted unless there has been error, the error is clear or
obvious, and the error affected substantial rights. Puckett v. United States,
556 U.S. 129, 135 (2009). Further, we should exercise our discretion to correct
plain error only if the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings. Id.
Pursuant to 18 U.S.C. § 3583(d), a district court may order, as a condition
of supervised release, any condition set forth in 18 U.S.C. § 3563(b). Section
3563(b) includes that the defendant “remain in the custody of the Bureau of
Prisons during nights, weekends, or other intervals of time, totaling no more
than the lesser of one year or the term of imprisonment authorized for the
offense, during the first year of the term of probation or supervised release[.]”
§ 3563(b)(10).
“[L]egal error must be clear or obvious, rather than subject to reasonable
dispute.” Id. at 135; see also United States v. Hernandez-De Aza, 536 F. App’x
404, 408 (5th Cir. 2013). Figueroa has not shown that the district court’s
written judgment contained a clear or obvious error. See Puckett, 556 U.S. at
135. Figueroa also has not shown that any error affected his substantial rights,
or seriously affects the fairness, integrity, or public reputation of judicial
proceedings. Id. “The possibility that the Bureau of Prisons will misinterpret
the district court’s written judgment as requiring [a defendant] to serve a term
of intermittent confinement immediately upon beginning his term of
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No. 14-50334
supervised release is entirely speculative and remote.” Arciniega-Rodriguez,
581 F. App’x at 420-21. In addition, Figueroa is subject to an immigration
detainer and will be placed in removal proceedings upon final disposition of the
instant sentence. He therefore faces no negative consequences from the
imposition of intermittent confinement as a condition of his non-reporting
supervised release unless he illegally returns to the United States. Id.; see also
United States v. Chavez-Trejo, 533 F. App’x 382, 386 (5th Cir. 2013).
Despite this court’s recent decision in Arciniega-Rodriguez, the
Government has not demonstrated that the issues presented in this appeal are
appropriate for summary affirmance. See United States v. Holy Land Found.
For Relief & Dev., 445 F.3d 771, 781 (5th Cir. 2006); 5TH CIR. R. 47.5.4.
The judgment of the district court is AFFIRMED. The Government’s
motion for summary affirmance is DENIED; its alternative motion for an
extension of time to file a brief is also DENIED.
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