United States v. Villarreal ( 2021 )

Case: 21-40059 Document: 00515946749 Page: 1 Date Filed: 07/21/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 21, 2021
No. 21-40059
Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Manuel Villarreal,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
No. 2:08-CR-130-1
Before Smith, Stewart, and Graves, Circuit Judges.
Per Curiam:*
Manuel Villarreal pleaded guilty of alien-smuggling in violation of
8 U.S.C. § 1324(a)(1)(A)(ii) and (B)(ii) and was sentenced to 37 months of
imprisonment and 3 years of supervised release. The district court later
revoked his supervised release based on his arrest for criminal trespass, his
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 21-40059 Document: 00515946749 Page: 2 Date Filed: 07/21/2021
No. 21-40059
failure to abide by the nighttime-curfew condition, and his failure to partici-
pate in home detention/electronic monitoring as directed. The court sen-
tenced Villarreal to 13 months of imprisonment followed by a new 23-month
term of supervised release.
At the revocation hearing, the district court stated that Villarreal
would be subject to the “standard terms and conditions of supervision” and
the “prior conditions” imposed at his original sentencing. One of the “prior
conditions” was the requirement that Villarreal participate in anger-
management counseling “as deemed necessary and approved by the proba-
tion officer.”
In addition to the anger-management condition, the probation officer
recommended, in court at the revocation hearing, that Villarreal be required
to register as a sex offender and participate in sex-offender mental health
counseling, among other sex-offender related conditions, based on Villar-
real’s 2008 Texas conviction of aggravated sexual assault of a child. The
court imposed all of the recommended sex-offender-related special
conditions.
On appeal, Villarreal first claims that the imposition of the anger-
management condition was an impermissible delegation of judicial authority.
Alternatively, Villarreal contends that the wording of the condition, which
includes the phrase “as deemed necessary and approved by the probation
officer,” creates an ambiguity as to whether the court delegated to the pro-
bation officer the authority to impose the condition.
The government urges that Villarreal’s challenge to the anger-
management condition should be reviewed for plain error because he did not
object to the special condition at the revocation hearing. Villarreal maintains
that the issue should be reviewed for abuse of discretion because he had no
meaningful opportunity to object. Consistent with United States v. Gomez,
960 F.3d 173, 179−80 (5th Cir. 2020), review is for plain error.
2
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No. 21-40059
As the government concedes, Villarreal has demonstrated a clear or
obvious error that affected his substantial rights. 1 Villareal fails, however, to
brief or even address the fourth prong of plain error, and this court refuses to
correct plain error where “the complaining party makes no showing as to the
fourth prong.” 2
Moreover, Villarreal may seek modification of the challenged anger-
management condition under 18 U.S.C. § 3583(e)(2) and a hearing per Fed-
eral Rule of Criminal Procedure 32.1(c) any time before the expiration or
termination of his 23-month term of supervised release. Thus, Villarreal has
the alternative remedy under § 3583(e)(2) by which the district court could
resolve, in the first instance, any ambiguity about whether it intended his
participation in anger-management counseling or whether, instead, it dele-
gated authority to decide to the probation officer—as distinguished from this
court’s vacating the special condition and remanding for clarification. 3
Even if Villarreal had adequately briefed the four prongs, he has not
met his burden of showing that the anger-management condition so seriously
threatens the fairness, integrity, or public reputation of judicial proceedings
that it requires correction on plain error review. 4
1
See Puckett v. United States, 556 U.S. 129, 135 (2009); United States v. Barber,
865 F.3d 837, 840 (5th Cir. 2017).
2
United States v. Rivera, 784 F.3d 1012, 1018 n.3 (5th Cir. 2015); accord United
States v. Reyes, 300 F.3d 555, 558 (5th Cir. 2002) (providing that the defendant “has the
burden to show” that each prong of the plain-error test is satisfied); United States v.
Freeman, No. 20-50181, 2021 U.S. App. LEXIS 20431, at *13 (5th Cir. July 9, 2021) (per
curiam) (unpublished) (quoting Reyes, 300 F.3d at 558).
3
See United States v. Mendoza-Velasquez, 847 F.3d 209, 213 (5th Cir. 2017) (stating
that modifiability of a special condition “weighs heavily” against finding that prong four
has been satisfied (internal quotation marks and citation omitted)).
4
See Puckett, 556 U.S. at 135. As the government reasons, “neither Barber nor any
other case may be read to require that [this court] exercise its fourth-prong discretion here
because that would result in an impermissible ‘per se’ approach to plain error.” See also
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No. 21-40059
For his second issue, Villarreal claims that the district court erred in
imposing the sex-offender special conditions because there was insufficient
information before the court to establish a reasonable relationship to the
§ 3583(d) factors. He concedes that he did not object to the sex-offender
registration and other sex-offender related conditions of supervision on the
basis of § 3583(d) and that review is for plain error only.
The district court was entitled to credit the probation officer’s factual
statements at the revocation hearing—that Villarreal was convicted in 2008
of rape of a child and was sentenced to 10 years in state custody—as reliable
evidence. 5 The court likewise was entitled to rely on Villarreal’s confirma-
tion, at the revocation hearing, that the information provided by the proba-
tion officer was correct. The conditions, which are included in the written
revocation judgment, are reasonably related to, among other things, the per-
sonal “history and characteristics of the defendant” and “the need . . . to
afford adequate deterrence.” 6
Villarreal has failed to show error, plain or otherwise, in the imposition
of the sex-offender registration and the other sex-offender special conditions
of supervised release. Based on the foregoing, the judgment is
AFFIRMED.
id. at 142 (emphasizing that a “per se approach to plain-error review is flawed” (internal
quotation marks and citation omitted)).
5
See United States v. Valdez, 453 F.3d 252, 267 (5th Cir. 2006).
6
See 18 U.S.C. § 3553(a)(1), (2)(B); § 3583(d)(1).
4