United States v. Vigil ( 2021 )

Case: 20-50192 Document: 00515767503 Page: 1 Date Filed: 03/05/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 20-50192 March 5, 2021
Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Luis Jose Vigil,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 2:19-CR-1534
Before Wiener, Dennis, and Duncan, Circuit Judges.
Per Curiam:
Luis Jose Vigil pleaded guilty to one count of conspiracy to transport
illegal aliens and one count of transporting an illegal alien. After summarizing
his history of drug abuse and prior drug-related arrests and convictions,
Vigil’s presentence report (PSR) recommended that as a “special condition”
Vigil be required to “abstain from the use of alcohol and/or all other
intoxicants during the term” of supervised release that will follow his prison
sentence. Over Vigil’s objection to the prohibition on alcohol use, the district
court imposed the special condition.
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On appeal, Vigil argues that imposition of the “no alcohol” condition
was an abuse of the district court’s discretion because the condition is not
reasonably related to his offense or his history and characteristics, and that
the condition deprives him of liberty to a greater extent than necessary to
achieve the goals of sentencing. Specifically, he argues that, while the record
contains evidence of his drug abuse and prior drug-related offenses, it does
not contain similar evidence of alcohol abuse that would justify prohibiting
him from drinking alcohol. Our court has affirmed “no alcohol” special
conditions in similar circumstances on plain error review, but we have yet to
consider a case, like the present one, in which a defendant preserved his
challenge by raising his argument before the district court. After careful
review of the record in light of the applicable sentencing factors, we
AFFIRM the district court’s imposition of the special condition.
I. Facts and procedural background
The underlying facts of Vigil’s instant offense are not particularly
relevant to the issue on appeal. However, to briefly summarize: Vigil was
driving a car with two passengers that stopped at a Border Patrol checkpoint
near Del Rio, Texas. During inspection, Border Patrol agents discovered that
one of the passengers was present in the country illegally. Vigil was
eventually indicted on one count of conspiracy to transport illegal aliens and
one count of transporting an illegal alien, and he pleaded guilty to both
charges.
The following relevant facts were accepted by the district court
through its adoption of the PSR and are not disputed by Vigil: During his
presentence interview, Vigil, who was 25 years old at the time, told a
probation officer that he first used marijuana at the age of 13 and smoked
three marijuana cigarettes daily, having last smoked marijuana in the month
he was arrested; that he used Xanax “daily” from the ages of 14 to 17; that
he “experimented” with cocaine “twice” at the age of 15 and with
methamphetamines “once” at the age of 24; and that he drank alcohol for
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the first time at age 15 “and only drank on three separate occasions” (though
the PSR is silent as to when). The PSR also stated that Vigil “did not recall
if he has ever attended treatment for substance abuse; however, he indicated
treatment would be necessary.” Finally, Vigil’s criminal history, as
recounted in his PSR, included two convictions for possession of controlled
substances—one for possession of marijuana and one for possession of
marijuana and Xanax—and another dismissed arrest for marijuana
possession.
The PSR recommended as special conditions of supervised release,
among other things, that Vigil (A) abstain from using alcohol and other
intoxicants during his term of supervision, and (B) participate in a substance
abuse treatment program that included testing for drugs and alcohol, subject
to the supervision of his probation officer. Vigil objected to the “no alcohol”
portion of the first special condition, in both written objections and at
sentencing. He argued that the ban on alcohol was not reasonably related to
either his offense (transporting an illegal alien) or to his personal history and
characteristics as recounted in his PSR. Vigil contended that the PSR showed
extensive drug use (which Vigil admitted would support drug-related
prohibitions), but only three instances of alcohol use. Given the lack of a
documented history of alcohol use, Vigil argued that a ban on alcohol
involved a greater deprivation of liberty than necessary. He also challenged
the “no alcohol” condition as inconsistent with the Sentencing
Commission’s policy statements. Vigil did not challenge the other
recommended special condition requiring substance abuse treatment, nor did
he challenge the recommended conditions prohibiting his use of controlled
substances without a valid prescription and prohibiting his use of
“psychoactive substances (e.g., synthetic marijuana, bath salts, etc.) that
impair a person’s physical or mental functioning.”
At sentencing, the district court stated that it considered Vigil’s “drug
usage” “to see what he may need when he gets out.” Responding to
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counsel’s objection to the inclusion of alcohol in the special condition
banning the use of any intoxicants, the district court stated it was “not so
worried about the alcohol [portion of the special condition] since that
condition also deals with other intoxicants. A lot of times the other
intoxicants—maybe not with your client—but sometimes they do lead to
some of these other uses.” The court then re-iterated its understanding that
regardless of whether the word “alcohol” appeared in the language of the
special condition, alcohol was nonetheless “subsumed under ‘intoxicants’”
and the court stated further that it would not “delete the whole condition”
because Vigil had “been addicted to other intoxicants that I don’t want him
on at all.” The district court overruled Vigil’s objection.
The district court sentenced Vigil to concurrent 21 months of
imprisonment on each count, followed by three years of supervised release.
As a special condition of supervised release, the court required that Vigil
“abstain from the use of alcohol and any and all intoxicants” while on
supervision. The court also imposed the recommended special conditions
requiring participation in substance abuse treatment, prohibiting the use of
controlled substances without a valid prescription, and prohibiting the use of
other “psychoactive substances.” This appeal followed.
II. Standard of review
Where a defendant preserves the challenge, we review the substantive
reasonableness of a sentence—including supervised release conditions—
under the abuse-of-discretion standard. See Gall v. United States, 552 U.S.
38, 51 (2007); United States v. Fernandez, 776 F.3d 344, 345 (5th Cir. 2015)
(citing United States v. Rodriguez, 558 F.3d 408, 412 (5th Cir. 2009)).
III. Analysis
As the facts are not in dispute, the single question before us is whether
these facts support the imposition of a special condition of supervised release
barring Vigil from consuming “any and all intoxicants,” including
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“alcohol,” or whether the “alcohol” provision should have been excised
from the condition given the lack of evidence that Vigil had a history of
alcohol abuse specifically. After considering the applicable sentencing
factors, we find no abuse of discretion in the district court’s decision to
prohibit Vigil from using alcohol during his term of supervised release.
“A district court has wide discretion in imposing terms and conditions
of supervised release. However, this discretion is limited by 18 U.S.C.
§ 3583(d), which provides that a court may impose special conditions of
supervised release only when the conditions meet certain criteria.” United
States v. Paul, 274 F.3d 155, 164 (5th Cir. 2001).
Pursuant to 18 U.S.C. § 3583(d), a district court has the discretion to
order “any other condition it considers to be appropriate,” so long as the
condition is “reasonably related” to certain sentencing factors.
These factors include: (1) “the nature and circumstances of the
offense and the history and characteristics of the defendant,”
(2) the need “to afford adequate deterrence to criminal
conduct,” (3) the need “to protect the public from further
crimes of the defendant,” and (4) the need “to provide the
defendant with needed [training], medical care, or other
correctional treatment in the most effective manner.”
Paul, 274 F.3d at 165 (quoting 18 U.S.C. § 3553(a)(1)-(2)) (alteration in
original). “In addition, supervised release conditions cannot involve a
greater deprivation of liberty than is reasonably necessary to achieve the
latter three statutory goals.” Id. (citing § 3583(d)). And finally, § 3583(d)
requires that the supervised release condition also be “consistent with any
pertinent policy statements issued by the Sentencing Commission.” 18
U.S.C. § 3583(d). In this case, the pertinent policy statement is contained in
U.S.S.G. § 5D1.3(d)(4), which states that “[i]f the court has reason to believe
that the defendant is an abuser of narcotics, other controlled substances or
alcohol,” then special conditions (A) “requiring the defendant to participate
in a program . . . for substance abuse . . . and” (B) “specifying that the
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defendant shall not use or possess alcohol” may be appropriate. See U.S.S.G.
§ 5D1.3(d)(4) (emphasis added).
In United States v. Ferguson, 369 F.3d 847 (5th Cir. 2004), we stated
that it was not an abuse of discretion for the district court to impose a special
condition of supervised release prohibiting the defendant from ingesting
cough syrups containing codeine and sleeping medications containing drugs
or alcohol without a prescription because there was evidence that the
defendant had a history of drug abuse and the medications “contain
chemicals that may be addictive.” 369 F.3d at 853. However, we vacated a
special condition prohibiting the defendant from taking any over-the-counter
(OTC) drugs because it was overbroad. Id at 853–54. Nevertheless, we noted
in dicta that a similar special condition could be permissible if limited to OTC
drugs that were susceptible to abuse and therefore could have a detrimental
impact on the defendant. Id. at 854. We also vacated a special condition
prohibiting tobacco use and the taking of aspirin, because tobacco and aspirin
were not reasonably related to the permissible statutory factors. Id. at 853.
Thus, while Ferguson did not address a “no alcohol” condition specifically,
it stands for the proposition that, when sentencing a defendant with a history
of drug abuse, it may be within the district court’s discretion to more broadly
prohibit the defendant from consuming any substances that are intoxicating
and/or susceptible to abuse.
In line with Ferguson’s rationale, in multiple unpublished decisions
our court has affirmed, albeit on plain error review, the imposition of “no
alcohol” conditions when there was evidence in the record that the
defendant abused controlled substances, even absent evidence that the
defendant had a history of abusing alcohol specifically. See United States v.
Heredia-Holguin, 679 F. App’x 306, 311–12 (5th Cir. 2017); United States v.
Cortez-Guzman, 606 F. App’x 241, 242–43 (5th Cir. 2015); United States v.
Gayford, 380 F. App’x 442, 444 (5th Cir. 2010); United States v. McCall, 419
F. App’x 454, 457–59 (5th Cir. 2011). While unpublished decisions are non-
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precedential, and the cases cited above reviewed only for plain error rather
than abuse of discretion, we find them persuasive.
Applying the foregoing to Vigil, we conclude that the district court did
not abuse its discretion in imposing the “no alcohol” condition. In this case,
the “no alcohol” condition meets all of the requirements of 18 U.S.C.
§ 3583(d). First, the special condition was “reasonably related” to the
permissible sentencing factors in § 3553(a), including specifically the
“history and characteristics of the defendant”—Vigil’s admitted abuse of
marijuana and Xanax, his multiple drug-related arrests and convictions, and
his admission that he would benefit from drug treatment—and the need for
the sentence to “afford adequate deterrence to criminal conduct,” “protect
the public from further crimes,” and, “provide the defendant with needed
. . . medical care, or other correctional treatment”—here, substance abuse
treatment—“in the most effective manner.” See 18 U.S.C. §3553(a)(1),
(a)(2)(B), (a)(2)(C), (a)(2)(D). This conclusion is well supported by the
record, as reflected in the facts contained in Vigil’s PSR and the district
court’s statements at sentencing in which the court explained the need for a
prohibition on the use of all intoxicants by focusing on Vigil’s history of drug
use and the potential that the use of one intoxicant can lead to use of others.
Second, for essentially the same reasons, the special condition
involves no greater deprivation of liberty than is reasonably necessary in this
case to achieve the statutory goals. See United States v. Vega, 545 F.3d 743,
747 (9th Cir. 2008) (“A condition that requires [a defendant] to stay
completely sober by prohibiting him from using any intoxicating substance—
whether drugs or alcohol—is ‘part of an integrated rehabilitative scheme.’”)
(citation omitted); United States v. Forde, 664 F.3d 1219, 1224 (8th Cir. 2012)
(recognizing, in some cases, “that the use of alcohol limits a recovering
person’s ability to maintain a drug-free lifestyle” such that “it was within the
district court’s discretion to recognize the threat of cross addiction and
respond by imposing the ban on alcohol use . . . consistent with the statutory
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goals of deterrence and protecting the public from future
offenses”(cleaned up)).
Finally, the special condition is consistent with the Sentencing
Commission’s policy statement. Indeed, the district court in this case was
presented with the exact scenario outlined in the policy statement and
imposed precisely the special conditions recommended. The policy
statement does not require the district court to find that the defendant abuses
alcohol specifically in order to prohibit alcohol use. Rather, presented with
evidence that Vigil abused “narcotics, other controlled substances or
alcohol” (emphasis added), the district court imposed special conditions
requiring participation in a substance abuse treatment program and
prohibiting the use of alcohol. See U.S.S.G. § 5D1.3(d)(4); see also Gayford,
380 F. App’x at 444 (“Because the court had reason to believe that [the
defendant] abuses controlled substances, it could require participation in a
drug-abuse treatment program and restrict [defendant’s] access to other
substances, including alcohol and legal drugs presenting a danger of
addiction.” (citing Ferguson, 369 F.3d at 853) (other citation omitted)).
IV. Conclusion
Of course, it will not always automatically be within the district
court’s discretion to impose a special condition prohibiting alcohol use
whenever a defendant has drug use or drug-related arrests in his or her past.
Special conditions “must be tailored to the individual defendant,” not
“imposed as a matter of course,” United States v. Caravayo, 809 F.3d 269,
276 (5th Cir. 2015), and the Sentencing Commission’s policy statement
recommends prohibiting alcohol use only when the court “believe[s] that the
defendant is an abuser of narcotics, other controlled substances or alcohol,”
not merely when a defendant has ever used drugs or alcohol, see U.S.S.G.
§ 5D1.3(d)(4) (emphasis added). But, in a case like this, where the defendant
has a history of substance abuse and drug-related arrests such that the court
reasonably believes he is an “abuser” of drugs, it is within the district court’s
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discretion to require substance abuse treatment and prohibit the use of
intoxicating substances, including alcohol, as special conditions of supervised
release—even when there is no evidence in the record of alcohol abuse
specifically.
For the foregoing reasons, we AFFIRM Vigil’s sentence.
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