United States v. Vargas ( 2022 )

Case: 20-50082 Document: 00516166735 Page: 1 Date Filed: 01/13/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 13, 2022
No. 20-50082 Lyle W. Cayce
Summary Calendar Clerk
United States of America,
Plaintiff—Appellee,
versus
Daniel Jesus Vargas,
Defendant—Appellant.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 3:18-CR-1128-1
Before Jolly, Willett, and Engelhardt, Circuit Judges.
Per Curiam:
Daniel Jesus Vargas was sentenced to 60 months of imprisonment
followed by 4 years of supervised release after pleading guilty to conspiracy
to possesses with intent to distribute a controlled substance, in violation of
21 U.S.C. §§ 846, 841(a)(1) and (b)(1)(B)(ii); and possession with intent to
distribute a controlled substance, in violation of 21 U.S.C. § 841(a)(1) and
(b)(1)(B)(ii). He contends that there was not an adequate basis for the district
court to accept his guilty plea as to the conspiracy charge and that the district
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No. 20-50082
court’s written judgment regarding the standard conditions of supervised
release conflict with its oral pronouncement. We AFFIRM.
Because Vargas did not object to the factual basis underlying his
conspiracy conviction or the conditions of supervised release when afforded
the opportunity to do so, we review these claims for plain error only. United
States v. Nepal, 894 F.3d 204, 208 (5th Cir. 2018). To demonstrate plain
error, a defendant has the burden of showing (1) an error (2) that is plain,
(3) that affects the defendant’s substantial rights, and (4) that seriously
affects the fairness, integrity, or public reputation of judicial proceedings.
United States v. Escajeda, 8 F.4th 423, 426 (5th Cir. 2021).
“To determine whether a factual basis for a plea exists, we must
compare ‘(1) the conduct to which the defendant admits with (2) the
elements of the offense charged in the indictment or information.’” Nepal,
894 F.3d at 208 (quoting United States v. Marek, 238 F.3d 310, 315 (5th Cir.
2001) (en banc)). Vargas contends that the district court plainly erred in
accepting his plea to the conspiracy charge because there was insufficient
basis to conclude that he conspired with anyone other than a government
informant. We need not decide, however, whether Vargas is correct on this
point. For even if the district court erred in accepting his plea to conspiracy,
Vargas does not argue that he would not have entered the guilty plea but for
the error—and for that reason, he has not demonstrated that his substantial
rights were affected, as is necessary for reversal under plain-error review. See
United States v. London, 568 F.3d 553, 558, 560 (5th Cir. 2009).
Next, Vargas argues that the district court erred by failing to set forth
all non-discretionary terms of his sentence at the sentencing hearing. True, a
district court must orally pronounce a criminal defendant’s sentence,
including any discretionary conditions of supervised release, at the
sentencing hearing. United States v. Diggles, 957 F.3d 551, 557 (5th Cir. 2020)
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(en banc). “If the in-court pronouncement differs from the [written]
judgment that later issues, what the judge said at sentencing controls.” Id.“But . . . the sentencing court” need not “recite the conditions word-for-
word.” United States v. Grogan, 977 F.3d 348, 352 (5th Cir. 2020). The court
may instead “adopt[] the conditions by referenc[e].” Id. at 354.
Here, according to Vargas, the district court improperly imposed the
sixteen “standard” conditions of supervised release (which are set forth in
the standing order for the Western District of Texas) in its written judgment,
but did not outline thirteen such conditions at Vargas’s sentencing hearing.
At the start of that hearing, the district court confirmed with Vargas that he
and his counsel had reviewed the presentence report (PSR), which had
recommended “the mandatory and standard conditions of supervision.”
The district judge went on to explain to Vargas that “[s]upervised release
will be for a period of four years under the Court’s mandatory, standard, and
the special conditions” to be “outline[d] momentarily,” but did not
expressly cite the Western District’s standing order. At no point during his
sentencing hearing did Vargas object to the aspects of his sentence now
challenged on appeal.
Under these circumstances, we hold that the district court did not err,
plainly or otherwise, in including the standard conditions of supervised
release in Vargas’s sentence. “[A]lthough the court did not recite the
conditions in full, its shorthand reference” to its “standard conditions of
supervision” at sentencing “was adoption all the same.” Grogan, 977 F.3d at
353. We recently held, on very similar facts, that a district court (also that for
the Western District of Texas) had adequately orally pronounced those same
conditions. See United States v. Martinez, 15 F.4th 1179 (5th Cir. 2021). In
Martinez, as in this case, the PSR recommended “the mandatory and
standard conditions of supervision.” Id. at 1180. At the start of the hearing in
Martinez, as in this case, the district court confirmed that the defendant had
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reviewed the PSR and went on to say that the “the standard and mandatory
conditions of supervision” would be imposed, but did not expressly cite the
Western District’s standing order. Id. at 1180–81. And like Vargas, the
defendant in Martinez argued on appeal that the standard conditions of
supervised release had to be stricken from the written judgment because they
were not orally pronounced at the sentencing hearing. We rejected that
argument, explaining that the PSR had “notified [the defendant] that
‘standard conditions’ would likely be imposed”—and that, “[a]t sentencing,
the court . . . notified [the defendant] that it was imposing standard
conditions . . . . Given the longstanding existence of the Western District’s
standing order, defense counsel certainly knew that the standard conditions
being imposed were the ones listed in the standing order.” Id. at 1181.
We think Martinez’s reasoning applies with equal force here. To be
sure, the district court in this case did not expressly adopt the PSR at the
sentencing hearing, as the district court in Martinez had done. But the key
observations relied upon by the Martinez panel are also true of this case: “At
sentencing, the court . . . notified [Vargas] that it was imposing standard
conditions,” and “[g]iven the longstanding existence of the Western
District’s standing order, defense counsel certainly knew that the standard
conditions . . . were the ones listed in the standing order.” Id. Hence, even
though the district court did not orally adopt the PSR in its entirety, it should
have been clear to defense counsel in this case that the “standard” conditions
of supervised release mentioned by the sentencing judge were the same
standard conditions referenced in Vargas’s PSR and set forth in the Western
District’s standing order. See United States v. Castaneda, No. 20-40290, 2021
WL 5397601, at *1 (5th Cir. Nov. 17, 2021) (special conditions described in
PSR were adequately adopted by oral reference even though “the district
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court did not explicitly adopt the PSR at [defendant’s] sentencing
hearing”). 1
Accordingly, the district court’s judgment is AFFIRMED.
1
Similarly, in United States v. Rodriguez, 838 F. App’x 119, 120 (5th Cir. 2021), we
held that a district court’s oral reference to “substance abuse testing and treatment” at
sentencing (in conjunction with the court’s confirmation that the defendant had reviewed
the PSR) was sufficient to adopt by reference all of the drug- and alcohol-related special
conditions of supervised release set forth in the PSR—even though, as inspection of the
record and briefing in that case reveals, the district court did not expressly adopt the PSR.
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