United States v. Ortuno-Higareda ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 04-10257
Plaintiff-Appellee, D.C. No.
v.  CR-00-00786-1-
RAUL ORTUÑO-HIGAREDA, JMR
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Arizona
John M. Roll, District Judge, Presiding
Argued and Submitted
February 7, 2005—San Francisco, California
Filed August 26, 2005
Before: J. Clifford Wallace, Johnnie B. Rawlinson, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Wallace;
Partial Concurrence and Partial Dissent by Judge Rawlinson
11625
11628 UNITED STATES v. ORTUÑO-HIGAREDA
COUNSEL
Francisco León, Tucson, Arizona, for defendant-appellant
Raul Ortuño-Higareda.
Nathan D. Leonardo, Assistant United States Attorney, Tuc-
son, Arizona, for plaintiff-appellee United States of America.
OPINION
WALLACE, Senior Circuit Judge:
Raul Ortuño-Higareda (Ortuño) appeals from the district
court’s judgment revoking his term of supervised release and
UNITED STATES v. ORTUÑO-HIGAREDA 11629
sentencing him to a twenty-four month term of imprisonment.
We have jurisdiction over this timely appeal pursuant to 28
U.S.C. § 1291. The questions before us are (1) whether the
district court had jurisdiction to revoke Ortuño’s supervised
release term when revocation occurred before expiration of
the term, and (2) whether supervised release was properly
revoked when the government did not prove that Ortuño
received notice of the supervised release condition that he was
charged with violating.
I.
In 2000, Ortuño was charged in the United States District
Court for the District of Arizona with illegally re-entering the
United States after deportation, in violation of 8 U.S.C.
§ 1326(a). Ortuño pled guilty and the district court sentenced
Ortuño to an eighteen-month term of imprisonment followed
by thirty-six months of supervised release. The subsequently
entered judgment of conviction required Ortuño to comply
with eighteen “standard conditions” of supervision, and two
“special conditions.” The first standard condition (Standard
Condition One) provided: “You shall not commit another fed-
eral, state, or local crime during the term of supervision.” The
first special condition (Special Condition One) provided: “If
deported, you shall not re-enter the United States without
legal authorization.” The government concedes that Ortuño
was not given written notice of the conditions of his super-
vised release.
Ortuño was later released from federal custody and
deported. On May 1, 2003, Ortuño was apprehended by
United States Border Patrol Agents near Otay Mesa, Califor-
nia. A criminal complaint was filed in the United States Dis-
trict Court for the Southern District of California charging
Ortuño with a violation of 8 U.S.C. § 1326. Subsequently, a
Petition on Supervised Release (Revocation Petition) and a
Warrant for Arrest were filed in the District of Arizona. The
Revocation Petition alleged the following violation:
11630 UNITED STATES v. ORTUÑO-HIGAREDA
Allegation 1: Violation of Standard Condition 1:
You shall not commit another federal, state, or
local crime during the term of supervision. Grade
B violation, §7B1.1(a)(2).
On or about May 1, 2003, Ortuno-Higareda illegally
entered and/or was found in the United States, in the
Southern District of California, without legal autho-
rization, after having been denied admission,
excluded, deported or removed from the United
States on August 13, 2001, via San Ysidro, Califor-
nia, in violation of 8 U.S.C. §1326(a), Deported
Alien Found in the United States. This is evidenced
by his arrest by a U.S. Border Patrol Agent on May
1, 2003.
At an evidentiary hearing on the Revocation Petition held
before a magistrate judge, Border Patrol Agent George Allen
was in possession of Ortuño’s original “A-file,” a file kept on
an alien containing arrest reports, conviction documents, war-
rants of deportation, immigration judge orders, photographs,
and fingerprints. Agent Allen testified about the A-file docu-
ments related to the alleged May 1, 2003 illegal re-entry. He
also testified that, although he was not in possession of a
record of a conviction for that illegal re-entry, he had been
informed that afternoon by the San Diego Border Patrol Pros-
ecution Unit that a judgment of conviction had been entered.
Probation Officer Assistant Beatriz Castillo testified that in
immigration-related cases, individuals would be taken into
custody immediately after sentencing. Once the term of
imprisonment was served, the individual would usually be
released to what was then the Immigration and Naturalization
Service. Castillo explained, “[w]e never see them following
their release from custody.” She also testified that she had no
information that the conditions of supervised release were dis-
cussed with Ortuño or that Ortuño received anything in writ-
ing regarding those conditions. She stated, however, that the
UNITED STATES v. ORTUÑO-HIGAREDA 11631
judge “usually advises” the defendant that he is bound by
those conditions at the time of sentencing.
Ortuño’s counsel argued that the government had not
proved that Ortuño had violated Standard Condition One as
alleged in the Revocation Petition, because there was no copy
of the judgment of conviction for the 2003 illegal re-entry and
Agent Allen’s hearsay testimony that Ortuño had been con-
victed was insufficient. He also contended that Ortuño’s
supervised release should not be revoked because there was
no evidence that Ortuño had been provided a written copy of
the supervised release conditions.
In his Report and Recommendation (R&R), the magistrate
judge concluded that the government had met its burden to
prove by a preponderance of the evidence that Ortuño com-
mitted a federal criminal offense as alleged in the Revocation
Petition, notwithstanding the absence of a copy of the judg-
ment of conviction for the 2003 illegal re-entry charge. As for
Ortuño’s argument concerning the lack of written notice of
the supervised release conditions, the magistrate judge rea-
soned:
From the testimony of Beatriz Castillo, it would
appear that the probation officer does not give the
Defendant a written statement of his supervised
release conditions in cases, such as this, where the
defendant is deported immediately upon release from
custody. This practice does not comply with the
express requirement of 18 U.S.C. § 3583(f). None-
theless, in this case it was a special condition of
supervised release that, “if deported, you shall not
re-enter the United States without legal authoriza-
tion.” The Defendant would have been verbally
advised of this special condition by the sentencing
judge. Defendant had actual notice that he was not
to re-enter the United States illegally, and therefore
the revocation based on that conduct is permissible.
11632 UNITED STATES v. ORTUÑO-HIGAREDA
United States v. Ortega-Brito, 311 F.3d 1136, 13138
[sic] (9th Cir. 2002).
The magistrate judge found that Ortuño (1) “violated his
conditions of supervised release as alleged in the petition” and
(2) “had actual notice that the conduct in issue constituted a
violation of his condition of supervised release.”
Ortuño raised two objections to the R&R: (1) Agent
Allen’s hearsay testimony was insufficient to prove that
Ortuño was convicted of illegal re-entry and (2) there was no
evidence that Ortuño received the proper notice of the super-
vised release conditions. Ortuño’s counsel advised the court
that he had requested a transcript of the sentencing hearing at
which supervised release was imposed to determine whether
Ortuño received oral notice at that time. He urged the district
court to review the transcript upon arrival to determine
whether “actual notice” of the supervised release conditions
was provided, instead of relying, as the magistrate judge
seemingly had, on the “practice” of judges to notify defen-
dants orally of such conditions at sentencing. The district
court entered an order adopting the R&R and making the
same two findings that the magistrate judge made. Four days
later, a transcript of the sentencing hearing was filed with the
district court indicating that Ortuño had been advised of Spe-
cial Condition One, but not Standard Condition One. Never-
theless, the district court subsequently entered a judgment
revoking Ortuño’s supervised release and sentenced him to a
twenty-four-month term of imprisonment. This judgment was
entered before Ortuño’s supervised release term was sched-
uled to expire.
II.
On appeal, Ortuño renews his argument that his supervised
release should not have been revoked because (1) the govern-
ment did not produce sufficient evidence that he violated
Standard Condition One and (2) he did not receive the condi-
UNITED STATES v. ORTUÑO-HIGAREDA 11633
tions of supervised release in writing. In addition, he contends
for the first time that under United States v. Vargas-Amaya,
389 F.3d 901 (9th Cir. 2004), the district court lacked juris-
diction to revoke his supervised release because the warrant
pursuant to which he was arrested was not “supported by Oath
or affirmation” as required by the Fourth Amendment’s War-
rant Clause. Because this latter challenge raises a jurisdic-
tional issue, we address it first. See Kyocera Corp. v.
Prudential-Bache Trade Servs., Inc., 341 F.3d 987, 995 n.12
(9th Cir. 2003) (en banc) (stating that “we are required to
resolve [jurisdictional] questions first”), cert. dismissed, 540
U.S. 1098 (2004).
A.
It is undisputed that the warrant which precipitated
Ortuño’s arrest was not “supported by Oath or affirmation.”
The question is whether this deficiency divested the district
court of jurisdiction to revoke his supervised release.
Although Ortuño did not raise this issue in the district court
(Vargas-Amaya had not yet been decided), “we review ques-
tions of jurisdiction even if raised for the first time on
appeal.” United States v. Powell, 24 F.3d 28, 30 (9th Cir.
1994). “We review the district court’s exercise of jurisdiction
de novo.” Id.
In Vargas-Amaya, we interpreted 18 U.S.C. § 3583(i),
which provides:
The power of the court to revoke a term of super-
vised release for violation of a condition of super-
vised release, and to order the defendant to serve a
term of imprisonment . . . , extends beyond the expi-
ration of the term of supervised release for any
period reasonably necessary for the adjudication of
matters arising before its expiration if, before its
expiration, a warrant or summons has been issued on
the basis of an allegation of such a violation.
11634 UNITED STATES v. ORTUÑO-HIGAREDA
[1] We held that “a district court’s jurisdiction to revoke
supervised release can be extended beyond the term of super-
vision under § 3583(i), based upon a warrant issued during
the term of supervision, only if the warrant was issued ‘upon
probable cause, supported by Oath or affirmation,’ as required
by the Fourth Amendment.” Vargas-Amaya, 389 F.3d at 907.
[2] Here, unlike in Vargas-Amaya, the district court’s juris-
diction was not premised upon section 3583(i) because
Ortuño’s supervised release was revoked before expiration of
his supervised release term. See United States v. Schmidt, 99
F.3d 315, 318 (9th Cir. 1996) (“[T]he conditions of section
3583(i) apply only when the revocation of supervised release
occurs after the term of supervised release has expired.”),
overruled on other grounds by United States v. Palomba, 182
F.3d 1121, 1123 (9th Cir. 1999). Since this case does not
involve section 3583(i), Vargas-Amaya’s interpretation of that
provision is irrelevant.
[3] In Schmidt, we explained that a district court has juris-
diction to revoke a supervised release term before expiration
of that term “even if no warrant or summons was issued in
accordance with 18 U.S.C. § 3583(i).” Id. at 319. The struc-
ture of the supervised release statute buttresses the conclusion
we reached in Schmidt. 18 U.S.C. § 3583(e)(3) provides that
the court may, after considering certain factors, “revoke a
term of supervised release . . . if the court, pursuant to the
Federal Rules of Criminal Procedure applicable to revocation
of . . . supervised release, finds by a preponderance of the evi-
dence that the defendant violated a condition of supervised
release.” The section 3583(e)(3) authority to revoke super-
vised release, unlike that in section 3583(i), is not conditioned
upon the issuance of a warrant. This indicates that Congress
intended to make the issuance of a valid warrant a jurisdic-
tional prerequisite only in cases governed by section 3583(i),
where revocation occurs after the conclusion of the supervised
release term. Where revocation occurs before expiration of
the term, section 3583(e)(3) governs and the district court will
UNITED STATES v. ORTUÑO-HIGAREDA 11635
have jurisdiction to revoke supervised release in the absence
of a warrant or even if a warrant is defective.
[4] We acknowledge that certain language in a Vargas-
Amaya footnote could be read to suggest that the requirements
of the Warrant Clause apply even when an arrest occurs dur-
ing the term of supervised release. See Vargas-Amaya, 389
F.3d at 905 n.2. Given our holding in Schmidt and the struc-
ture of the supervised release statute, we do not read this lan-
guage to establish the proposition that noncompliance with
the Warrant Clause creates a jurisdictional defect where revo-
cation occurs before expiration of the supervised release term.
Further, because we vacate Ortuño’s supervised release on
other grounds as explained later, we need not decide whether
a violation of the Warrant Clause might provide other, non-
jurisdictional grounds for challenging a revocation of super-
vised release. We hold only that because Ortuño’s revocation
proceedings were completed before the conclusion of his
supervised release term, section 3583(e)(3) rather than section
3583(i) provided the revocation authority. Therefore, that
Ortuño was arrested pursuant to a warrant which was not sup-
ported by oath or affirmation did not deprive the district court
of jurisdiction to revoke his supervised release.
B.
With the jurisdiction issue settled, we address the merits of
Ortuño’s challenges to the revocation of his supervised
release. “The district court’s decision to revoke a term of
supervised release is reviewed for an abuse of discretion.”
United States v. Verduzco, 330 F.3d 1182, 1184 (9th Cir.
2003). “We review a district court’s application of the super-
vised release statute de novo. We review a district court’s fac-
tual findings at the sentencing phase for clear error.” United
States v. Lomayaoma, 86 F.3d 142, 146 (9th Cir. 1996) (cita-
tions omitted).
We first determine whether revocation of supervised
release was an abuse of discretion because Ortuño received no
11636 UNITED STATES v. ORTUÑO-HIGAREDA
notice, written or oral, that he was subject to Standard Condi-
tion One. Cf. United States v. Foster, 500 F.2d 1241, 1244
(9th Cir. 1974) (where defendant “was not informed in any
way” that certain duties were conditions of his probation, his
failure to comply with those duties could not “be a predicate
for revoking his probation”). If so, we will not need to reach
Ortuño’s challenge to the sufficiency of the evidence.
[5] 18 U.S.C. § 3603 imposes a number of obligations on
probation officers, including subsection 1 which provides in
mandatory language that a probation officer shall
instruct a probationer or a person on supervised
release, who is under his supervision, as to the con-
ditions specified by the sentencing court, and pro-
vide him with a written statement clearly setting
forth all such conditions[.]
18 U.S.C. § 3603(1). This statement is clear and unambiguous
and provides specific direction to probation officers. This stat-
utory obligation is reinforced by 18 U.S.C. § 3583(f), which
imposes a similarly clear obligation on district courts:
The court shall direct that the probation officer pro-
vide the defendant with a written statement that sets
forth all the conditions to which the term of super-
vised release is subject, and that is sufficiently clear
and specific to serve as a guide for the defendant’s
conduct and for such supervision as is required.
[6] The government concedes that Ortuño was not given
written notice of his supervised release conditions. However,
we have held that, “where a releasee received actual notice of
the conditions of his supervised release,” a failure to adhere
to Congress’ obvious intent that written notice be provided
“will not automatically invalidate the revocation of . . . release
based upon a violation of such conditions.” United States v.
Ortega-Brito, 311 F.3d 1136, 1138 (9th Cir. 2002); see also
UNITED STATES v. ORTUÑO-HIGAREDA 11637
United States v. Tapia-Marquez, 361 F.3d 535, 536 (9th Cir.
2004). “Therefore, we must determine whether [Ortuño]
received actual notice of the conditions, the violations of
which formed the basis for the revocation of his supervised
release.” Ortega-Brito, 311 F.3d at 1138.
Ordinarily, materials not before the district court are not
considered in our review. Here, the transcript of the sentenc-
ing hearing at which supervised release was imposed was not
filed in the district court when the district judge approved the
R&R, in spite of Ortuño’s urging that he delay his decision
until it was prepared and filed. Nevertheless, the transcript
was filed before the court entered its judgment. Under these
circumstances, we conclude that we may consider the sen-
tencing transcript in making our decision. See United States
ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc.,
971 F.2d 244, 248 (9th Cir. 1992) (“[W]e ‘may take notice of
proceedings in other courts, both within and without the fed-
eral judicial system, if those proceedings have a direct relation
to matters at issue.’ ” (quoting St. Louis Baptist Temple, Inc.
v. FDIC, 605 F.2d 1169, 1172 (10th Cir. 1979))).
The transcript of the sentencing hearing states:
THE COURT: . . . So the record can show that it’s
the judgment of the Court that the defendant is com-
mitted to the custody of the Bureau of Prisons for a
period of 18 months, that he shall serve a 36 month
term of supervised release with the standard condi-
tions plus the special condition that the defendant is
not to enter the United States without proper docu-
mentation.
....
. . . . If you are deported, then it’s up to you to try
to get admitted legally into the country again.
11638 UNITED STATES v. ORTUÑO-HIGAREDA
MR. ORTUNO-HIGAREDA: Okay.
THE COURT: But for the — if you reenter the
United States, you’re going to be — within three
years after you do the 18 months, you will be violat-
ing your conditions of probation, you will be brought
before the Court for violation of supervised release,
and you could do another three years for entering
illegally.
MR. ORTUNO-HIGAREDA: Okay. Thank you,
your Honor.
THE COURT: Do you understand that?
MR. ORTUNO-HIGAREDA: Yes.
[7] Thus, Ortuño was orally advised that he was subject to
Special Condition One, which provided that he “shall not re-
enter the United States without legal authorization.” However,
the Revocation Petition did not charge him with a violation of
that condition. Instead, it charged him with violating Standard
Condition One, which provided that Ortuño “shall not commit
another federal, state, or local crime during the term of super-
vision.” Ortuño was not informed at the hearing that he was
subject to this latter condition. Because the government did
not prove that Ortuño received any notice, written or oral, that
he would be subject to Standard Condition One, a violation of
that condition could not serve as the basis for revocation of
his supervised release.
[8] It is insufficient that Ortuño was verbally advised that
he would violate a condition of his supervised release if he
illegally re-entered the United States. As we stated in Ortega-
Brito, the lack of written notice may be excused if a defendant
received actual notice of a condition and “the revocation of
his release [is] based upon a violation of such condition[ ].”
Id. (emphasis added); see also id. (stating that “we must deter-
UNITED STATES v. ORTUÑO-HIGAREDA 11639
mine whether [the defendant] received actual notice of the
conditions, the violations of which formed the basis for the
revocation of his supervised release” (emphasis added)). In
disregarding noncompliance with the statutory mandate, we
did not go so far as to hold that actual notice of one condition
may support revocation based on violation of a different con-
dition. We now hold that the failure to provide the statutorily
required written notice will be tolerated only when the gov-
ernment proves that the defendant received actual notice of
the very condition that he is charged with violating. See also
United States v. Johnson, 763 F. Supp. 900, 902 (W.D. Tex.
1991) (revoking supervised release even though defendant
had not been provided written copy of conditions because the
defendant was “advised expressly by the Court at the time of
sentencing of the specific condition of supervised release
which the Government alleges, as ground for revocation of
the Defendant’s supervised release, the Defendant has violat-
ed” (emphasis in original)). Since the Revocation Petition did
not charge Ortuño with a violation of Special Condition One,
his receipt of notice of that condition is irrelevant. Rather, the
failure to give Ortuño notice of Standard Condition One is
dispositive, and the court abused its discretion in revoking his
supervised release.
The dissent states that “[a]lthough Ortega-Brito, like
Ortuño, was not expressly advised that his supervised release
was conditioned on his refraining from committing crimes,
we nevertheless ruled that Ortega-Brito ‘received actual
notice’ that ‘he may not . . . commit any crimes.’ ” Post at
11643, quoting Ortega-Brito, 311 F.3d at 1139. But, as the
dissent acknowledges, the defendant in Ortega-Brito had been
advised that supervised release is “like a parole. If you do
something wrong, you go back to jail.” 311 F.3d at 1138. A
fair reading of our opinion in Ortega-Brito makes clear that
we relied upon this specific advisement in concluding that the
defendant “received actual notice” that “he may not . . . com-
mit any crimes.” Id. at 1139. There was no similar advisement
in this case. Thus, we do not agree that “[t]here is no princi-
11640 UNITED STATES v. ORTUÑO-HIGAREDA
pled basis upon which Ortega-Brito can be distinguished.”
Post at 11643.
One further issue merits discussion. The finding of the
magistrate judge and district court that Ortuño received the
required actual notice could only have been based on Castil-
lo’s testimony, because the transcript of the sentencing hear-
ing at which supervised release was imposed was not before
the magistrate judge when he issued the R&R or the district
court when it adopted the R&R. Yet, all Castillo testified was
that a sentencing judge “usually advises” the defendant of the
conditions of supervised release at the time of sentencing.
[9] We are aware of no case holding that evidence that it
is the “practice” of sentencing judges to advise defendants
that they are subject to certain conditions is sufficient to
establish that a particular defendant was in fact so advised.
The statutes discussed earlier are clear and free of doubt as to
their meaning. It is true that in Ortega-Brito we created our
own exception to the statutes which has not been overruled by
the Supreme Court and has not been made irrelevant by a con-
gressional amendment. But this does not justify additional
judicial tinkering with the statutes. We therefore hold that the
evidence in this case regarding the “practice” of sentencing
judges does not establish that Ortuño received notice of any
conditions. We stress that the failure to adhere to the congres-
sional mandate to provide written notice should be excused
only when there is specific evidence that the defendant
received actual notice of the condition, “the violation[ ] of
which formed the basis for the revocation of his supervised
release.” Ortega-Brito, 311 F.3d at 1138.
In Ortega-Brito, we were “compelled to emphasize the
importance of compliance with 18 U.S.C. §§ 3583(f) and
3603(1).” Id. at 1139. Although we “encourage[d] the estab-
lishment of procedures that would ensure compliance with the
letter, as well as the purpose, of the statutes,” id., it appears
that our suggestion has gone unheeded. We trust that the gov-
UNITED STATES v. ORTUÑO-HIGAREDA 11641
ernment will not continue to deport individuals following
terms of imprisonment without providing them with a written
copy of their supervised release conditions, as required by
statute. We also encourage the district courts to direct the pro-
bation officers to provide the written statement mandated by
18 U.S.C. § 3583(f).
[10] The district court’s judgment revoking Ortuño’s term
of supervised release and sentencing him to a twenty-four
month term of imprisonment is VACATED.
RAWLINSON, Circuit Judge, concurring in part and dissent-
ing in part:
I concur in that portion of the opinion concluding that the
district court had jurisdiction to revoke the supervised release
term. I respectfully dissent, however, from that portion of the
opinion concluding that Ortuño-Higareda was not adequately
apprised of the standard condition that he “not commit
another federal, state or local crime.” As the majority opinion
acknowledges, we have ruled that notice of a supervised
release condition is adequate if the defendant received actual
notice of that condition. See United States v. Ortega-Brito,
311 F.3d 1136, 1138 (9th Cir. 2002).
As the majority opinion noted, at the time of sentencing the
district court advised the defendant of the imposition of
. . . supervised release with the standard conditions
plus the special condition that the defendant is not to
enter the United States without proper documenta-
tion.
...
. . . if you reenter the United States, you’re going to
be — within three years . . . you will be violating
11642 UNITED STATES v. ORTUÑO-HIGAREDA
your conditions of probation, you will be brought
before the Court for violation of supervised release,
and you could do another three yeas for entering ille-
gally.
The majority opinion proposes to vacate the revocation
because Ortuño was advised of Special Condition One, that he
not “re-enter the United States without legal authorization,”
but was not advised of Standard Condition One, that he “not
commit another federal, state or local crime.” The majority
opinion reasons that because the revocation petition charged
a violation of Standard Condition One and not Special Condi-
tion One, a violation of Standard Condition One “could not
serve as the basis for revocation of his supervised release.”
However, I am not convinced that invalidation of the revoca-
tion is consistent with Ortega-Brito.
The supervised release advisement in Ortega-Brito was not
markedly different from the advisement in this case. In
Ortega-Brito, the releasee was advised that supervised release
was “like a parole. If you do something wrong, you go back
to jail.” Ortega-Brito, 311 F.3d at 1138. The district court
judge informed the releasee of the conditions of supervised
release by stating:
The usual terms and conditions will apply, together
with the special terms and conditions: that under no
circumstances is he ever again, as long as he lives,
to reenter or attempt to reenter the United States
without being properly and legally documented to do
so and having legal permission from the United
States government to do so.
Id. at 1139 (alteration omitted).
We interpreted the advisement given by the district court as
giving Ortega-Brito
UNITED STATES v. ORTUÑO-HIGAREDA 11643
actual notice that his release was conditioned upon
compliance with at least two restrictions: he may not
(1) commit any crimes, and (2) reenter the United
States without proper documentation.
Id. (emphasis added).
The majority opinion concludes that “[i]t is insufficient that
Ortuño was verbally advised that he would violate a condition
of his supervised release if he illegally re-entered the United
States.” Yet that is precisely what we approved in Ortega-
Brito. Although, Ortega-Brito, like Ortuño, was not expressly
advised that his supervised release was conditioned on his
refraining from committing crimes, we nevertheless ruled that
Ortega-Brito “received actual notice” that “he may not . . .
commit any crimes.” Id. There is no principled basis upon
which Ortega-Brito can be distinguished. That is especially
true in this case, because the petition to revoke supervised
release, although referencing Standard Condition One (com-
mission of a crime), described the violation as the illegal re-
entry that the district court expressly advised Ortuño would
constitute a violation. If the advisement was adequate in
Ortega-Brito to convey actual notice, it was equally adequate
in this case. Because I am convinced that Ortega-Brito con-
trols, I would affirm the revocation. I respectfully dissent
from that portion of the opinion concluding otherwise.