USA v. Hugo Arciniega-Rodriguez


UNPUBLISHED OPINION FILED. [13-51002 Affirmed ] Judge: ECP , Judge: PRO , Judge: JEG. Mandate pull date is 09/29/2014 for Appellant Hugo Arciniega-Rodriguez [13-51002]

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Case: 13-51002 Document: 00512759877 Page: 1 Date Filed: 09/08/2014 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 13-51002 Summary Calendar United States Court of Appeals Fifth Circuit FILED September 8, 2014 UNITED STATES OF AMERICA, Plaintiff–Appellee, Lyle W. Cayce Clerk v. HUGO ARCINIEGA-RODRIGUEZ, Defendant–Appellant. Appeal from the United States District Court for the Western District of Texas USDC No. 3:13-CR-1317-1 Before PRADO, OWEN, and GRAVES, Circuit Judges. PER CURIAM: * Hugo Arciniega-Rodriguez (Arciniega) pleaded guilty to being a previously deported alien who was found in the United States without permission in violation of 8 U.S.C. § 1326. For the first time on appeal, he argues that the district court plainly erred by imposing a term of intermittent confinement as a “self-effectuating” condition of his non-reporting supervised release. Our review is for plain error. 1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * 1 See United States v. Weatherton, 567 F.3d 149, 152 (5th Cir. 2009). Case: 13-51002 Document: 00512759877 Page: 2 Date Filed: 09/08/2014 No. 13-51002 Under 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), including 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.” 2 However, this condition may be “imposed only for a violation of a condition of supervised release in accordance with [the rules governing the modification or revocation of supervised release] and only when facilities are available.” 3 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. 4 Further, this court should exercise its discretion to correct plain error only if it “seriously affect[s] the fairness, integrity or public reputation of judicial proceedings.” 5 “[L]egal error must be clear or obvious, rather than subject to reasonable dispute.” 6 Arciniega has not shown that the district court’s written judgment contained a clear or obvious error. 7 Arciniega also has not shown an error that affected his substantial rights, or that seriously affects the fairness, integrity, 2 18 U.S.C. § 3563(b)(10). 18 U.S.C. § 3583(d)(3); see also U.S.S.G. § 5F1.8 (noting that “intermittent confinement” may be imposed during the first year of supervised release, but “only for a violation of a condition of supervised release”). 3 4 Puckett v. United States, 556 U.S. 129, 135 (2009). Id. (quoting United States v. Olano, 507 U.S. 725, 736 (1993)) (internal quotation marks omitted). 5 Id.; see also United States v. Hernandez-De Aza, 536 F. App’x 404, 408 (5th Cir. 2013) (per curiam). 6 7 See Puckett, 556 U.S. at 135. 2 Case: 13-51002 Document: 00512759877 Page: 3 Date Filed: 09/08/2014 No. 13-51002 or public reputation of judicial proceedings. 8 The possibility that the Bureau of Prisons will misinterpret the district court’s written judgment as requiring Arciniega to serve a term of intermittent confinement immediately upon beginning his term of supervised release is entirely speculative and remote. 9 Further, an immigration detainer has been lodged, and Arciniega will be placed in removal proceedings upon final disposition of the instant offense. He thus faces no negative consequences from the imposition of the condition of non-reporting supervised release unless he illegally returns to the United States. 10 AFFIRMED. 8 Id. Cf. United States v. Hatton, 539 F. App’x 639, 639 (5th Cir. 2013) (per curiam) (affirming the district court’s denial of an imprisoned defendant’s challenge to supervised release condition because it was “too speculative”). 9 See, e.g., United States v. Macias-Roman, 539 F. App’x 500, 501-02 (5th Cir. 2013) (per curiam); United States v. Chavez-Trejo, 533 F. App’x 382, 384-85 (5th Cir. 2013) (per curiam). 10 3

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