United States v. Llantada

FILED
United States Court of Appeals
Tenth Circuit

March 8, 2016
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
v. No. 15-2082
MARIO HUMBERTO LLANTADA,

Defendant - Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
(D.C. NO. 2:14-CR-00832-KG-1)

Margaret Katze (Dennis J. Candelaria, Assistant Federal Public Defender, Las
Cruces, New Mexico, on the briefs) Office of the Federal Public Defender,
Albuquerque, New Mexico, for Appellant.

David N. Williams, Assistant United States Attorney (Damon P. Martinez, United
States Attorney, with him on the brief) Office of the United States Attorney,
Albuquerque, New Mexico, for Appellee.

Before TYMKOVICH, Chief Judge, LUCERO, and HOLMES, Circuit Judges.

TYMKOVICH, Chief Judge.
 Most federal criminal sentences require prisoners to comply with various

limitations on their conduct and behavior as a condition of release from prison.

Typical conditions, for example, prohibit parolees from abusing alcohol or drugs,

or associating with felons. We recently held that the district court does not err

when it imposes conditions of release of this sort. United States v. Muñoz, ___

F.3d ___, 2016 WL 502863, at *3 (10th Cir. 2016). Our decision in Muñoz

resolves most of the challenges to the special conditions imposed in this case.

But Llantada also challenges on vagueness grounds several of the special

conditions imposed on him and not considered in Muñoz.

We AFFIRM the district court’s sentence. The conditions of supervised

release imposed here are sufficiently clear to inform a parolee of what conduct

will result in a return to prison.

I. Analysis

Llantada pleaded guilty to charges arising from a drug conspiracy in 2014.

The district court sentenced him to 168 months’ imprisonment, followed by terms

of supervised release ranging from one to five years, and imposed a number of

special conditions that will apply when he is released from prison. He challenges

those conditions on vagueness grounds. He also challenges the district court’s

refusal to award him a sentence reduction because of his relatively minor role in

the conspiracy.

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 A. Conditions of Supervised Release

Llantada first challenges the twelve conditions of supervised release

imposed by the district court. These conditions were nearly all standard

conditions of supervised release typically imposed at sentencing. 18 U.S.C.

§ 3563. The language of the conditions was drawn, often nearly verbatim, from

the federal sentencing statute. See id. Some of Llantada’s arguments are

identical to those presented in Muñoz and are controlled by that decision. To the

extent his arguments differ from those presented in Muñoz, we address them

below.

1. Arguments Addressed in Muñoz

Several of Llantada’s arguments were addressed in Muñoz. First, Muñoz

found that the district court does not abuse its discretion when it imposes standard

conditions of release without making particularized findings. “[W]e held in

United States v. Martinez-Torres that supportive findings are unnecessary when

the conditions are standard . . . . There we explained that the standard conditions

include those recommended under the guidelines.” Munoz, ___ F.3d at ___, 2016

WL 502863, at *10 (citing United States v. Martinez-Torres, 795 F.3d 1233, 1237

(10th Cir. 2015)).

Muñoz also addressed several of the specific conditions that Llantada

claims are vague or substantively unreasonable. These include the following:

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 (1) “The defendant shall answer truthfully all inquiries by the probation

officer and follow the instruction of the probation officer”;

(2) “The defendant shall support his or her dependents and meet other

family responsibilities”;

(3) “The defendant shall work regularly at a lawful occupation, unless

excused by the probation officer for schooling, training, or other acceptable

reasons”;

(4) “The defendant shall notify the probation officer at least ten days prior

to any change in residence or employment”;

(5) conditions related to alcohol use; and

(6) conditions related to searches conducted by the probation officer.

According to Muñoz, we apply a common sense, non-technical reading to

these conditions of release. See id. at *3 (“In our view, the district court did not

err, for we use common sense to guide our interpretation of supervised release

conditions.”). Neither a parolee nor his parole officer would have trouble

understanding and applying these conditions in a real world setting.

In addition to those conditions, Muñoz also partially addressed three more

of the conditions that Llantada challenges:

(1) “The defendant shall not frequent places where controlled substances

are illegally sold, used, distributed, or administered”;

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 (2) “The defendant shall not associate with any persons engaged in criminal

activity, and shall not associate with any person convicted of a felony unless

granted permission to do so by the probation officer”; and

(3) “The defendant shall notify the probation officer within seventy-two

hours of being arrested or questioned by a law enforcement officer.”

Muñoz did not address vagueness challenges to these three conditions, but

found them adequate in all other respects. In sum, Muñoz held that most of the

conditions challenged by Llantada are not erroneous or unlawful under circuit

precedent.

2. Vagueness and Other Arguments Not Addressed in Muñoz

Several of Llantada’s arguments were not directly addressed by Muñoz, and

we consider them here. 1

a. “The defendant shall notify the probation officer within
seventy-two hours of being arrested or questioned by a law
enforcement officer.”

Llantada argues that this condition is vague because several of its terms,

such as “law enforcement officer” or “questioned,” are undefined. But as Muñoz

discussed, “we use common sense to guide our interpretation of supervised

1
The defendant in Muñoz did not raise several of his challenges in the
district court. So the panel reviewed those arguments only for plain error.
Because Llantada presented all of his arguments to the district court, we review
them for abuse of discretion. Thus, Muñoz did not completely address all of
Llantada’s arguments under the abuse of discretion and clear error standards of
review we must apply here.

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release conditions.” Id. at *3 (citing United States v. Mike, 632 F.3d 686, 701

(10th Cir. 2011), cert. denied, 135 S. Ct. 2891 (2015)). Penal statutes, including

conditions of supervised release, must be written so that “ordinary people can

understand what conduct is prohibited and in a manner that does not encourage

arbitrary and discriminatory enforcement.” United States v. Corrow, 119 F.3d

796, 802 (10th Cir. 1997) (quoting Kolender v. Lawson, 461 U.S. 352, 357

(1983)); see also Grayned v. City of Rockford, 408 U.S. 104, 108 (1972) (“[W]e

insist that laws give the person of ordinary intelligence a reasonable opportunity

to know what is prohibited, so that he may act accordingly.”). Under a

commonsense reading, the district court did not abuse its discretion in imposing

this condition. “Law enforcement officer” and “questioned” are common terms

understood by the general population, and we presume that in Llantada’s future,

probation officers and judges will heed our directive to apply the conditions of

supervised release in a commonsense manner, rather than a technical one. See

Mike, 632 F.3d at 701. So, for example, if a parking meter attendant asks

Llantada for the time, this would not qualify as “being questioned” by a “law

enforcement officer” under a commonsense understanding of the condition.

The condition is not vague and the district court did not abuse its discretion

in making it a term of Llantada’s sentence.

b. “The defendant shall not leave the judicial district without
the permission of the court or probation officer.”

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 Llantada next argues that this restriction violates his right to travel and is

unnecessary. In addition, he argues the district court should have made

particularized findings before imposing this condition. The condition, however,

is recommended by the sentencing statute. See 18 U.S.C. § 3563(b)(13) (“The

court may provide that . . . the defendant . . . reside in a specified place or area, or

refrain from residing in a specified place or area[.]”).

As Muñoz found, conditions recommended by the sentencing statute or

Guidelines need not be accompanied by particularized findings. ___ F.3d at ___,

2016 WL 502863, at *10. And we reject his argument that the condition is an

unreasonable or unnecessary limitation on his right to travel. Llantada points to

no federal case with such a holding, and the government provides ample reasons

for limiting a person on supervised release to a single judicial district. For

example, probation officers have an easier time contacting and speaking with an

offender if he is limited to a single area. In addition, such a restriction acts as a

deterrent to criminal conduct, which comports with the policy goals of federal

sentencing law. See 18 U.S.C. § 3553(a)(2)(B). Finally, the restriction can be

lifted by a parole officer upon request by the parolee.

The condition is not unreasonable and the district court did not abuse its

discretion.

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 c. “The defendant shall report to the probation officer in a
manner and frequency directed by the court or probation
officer.”

This condition also appears in the federal sentencing statute. See 18 U.S.C.

§ 3563(b)(15). Llantada contends that this condition is vague because “manner”

and “frequency” are not defined. This could result, he claims, in a probation

officer requiring multiple daily visits. But Llantada unsurprisingly points to no

federal case finding this condition vague or inadequate as a matter of law. Again,

under a commonsense understanding of the condition, the probation officer could

require visits only as they were necessary. Some offenders may require more

frequent visitation than others. The condition allows probation officers, tasked

with maintaining the public’s safety, the leeway necessary to better accomplish

this goal.

We reject Llantada’s challenge to this standard condition.

d. Condition relating to the defendant’s participation in a
substance abuse treatment program.

Llantada claims this condition is invalid because he may not be able to pay

for such a treatment program. A similar argument was presented and rejected in

Muñoz. There the defendant alleged a child support payment requirement was

inadequate because he might not be able to pay child support. We stated that

“[m]any conditions might be reasonable but impossible to perform in given

circumstances,” but that this fact did not “prevent entry of an order” requiring

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such tasks be completed upon release. ___ F.3d at ___, 2016 WL 502863, at *6.

A probation officer might reasonably excuse such a requirement if its completion

is not possible. The district court did not abuse its discretion in requiring that

Llantada complete a substance abuse program.

e. “The defendant shall not frequent places where controlled
substances are illegally sold, used, distributed, or
administered.”

Muñoz rejected a challenge to this condition, but did not address a

vagueness challenge under the abuse of discretion standard. ___ F.3d at ___,

2016 WL 502863, at *9–10. As we recognized, this condition is taken, almost

verbatim, from the U.S. Sentencing Guidelines Manual. Id.; see also 18 U.S.C.

§ 3563. We explicitly rejected Muñoz’s challenge that the condition created strict

liability. Muñoz, ___ F.3d at ___, 2016 WL 502863, at *9–10 (“The most

reasonable interpretation of the condition is that it prohibits Mr. Muñoz from

going to places only if he knows that drugs are used or sold there.”). So all that

remains is Llantada’s vagueness challenge: that “frequent” and “place” are

undefined and thus inadequate as a matter of law. We, again, reject this type of

literal reading of the condition under our Mike standard. The probation officer,

and any judges tasked with deciding whether Llantada violated the condition,

must interpret the condition in a reasonable, commonsense manner. We have

little doubt that the condition allows for reasonable interpretation and

enforcement.

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 There was no abuse of discretion.

f. “The defendant shall not associate with any persons
engaged in criminal activity, and shall not associate with any
person convicted of a felony unless granted permission to do
so by the probation officer.”

Finally, Llantada contends that this condition is vague and also infringes on

his constitutionally protected associational rights. He points to a case in the

Seventh Circuit, which recently vacated this condition on vagueness grounds,

finding the offender could have no way of knowing if someone he was associating

with was a felon or not. United States v. Thompson, 777 F.3d 368, 376–77 (7th

Cir. 2015) (“How would the defendant know whether someone he was associating

with had ever been convicted of a felony? . . . [T]he condition appears to impose

strict liability.”). We reject this challenge because under our commonsense

reading of the condition, strict liability is not imposed. Cf. Muñoz, ___ F.3d at

___, 2016 WL 502863, at *9–10. The most reasonable interpretation of the

condition is that it prohibits associating only with those people Llantada knows to

be felons.

In Muñoz, we rejected the defendant’s associational rights challenge

because he failed to allege any family members were felons. See ___ F.3d at ___,

2016 WL 502863, at *7 (“But Mr. Muñoz has not alleged that he has any family

members with felony convictions. In the absence of such an allegation, the

district court acted within its discretion in imposing the condition.” (footnote

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omitted)). Here, Llantada’s brother was also convicted for his involvement in the

drug conspiracy, and Llantada specifically alleges as much. But, as the

government points out, Llantada’s probation officer may allow contact with

Llantada’s brother if he deems it appropriate; the condition is not a blanket ban.

If such contact is prohibited, Llantada may then bring a challenge asserting his

constitutional rights. Cf. id. at *5.

In addition, even were we to scrutinize the condition more closely—as we

have done with conditions restricting access to one’s own children—we find the

restriction is justified under the record. See United States v. Bear, 769 F.3d 1221,

1229 (10th Cir. 2014) (“[S]pecial conditions that interfere with the right of

familial association can do so only in compelling circumstances and it is

imperative that any such restriction be especially fine-tuned to achieve the

statutory purposes of sentencing.”) (citations and internal quotation marks

omitted). In Llantada’s case, there is evidence that association with his brother

might lead him to commit further crimes. Namely, that he induced his brother to

join the drug conspiracy in the first place. This “achieve[s] the statutory purposes

of sentencing.” Id.

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 B. Mitigating Role Adjustment

Llantada also challenges the district court’s failure to grant his request for a

mitigating role adjustment. We review for clear error. See United States v.

Chavez, 229 F.3d 946, 956 (10th Cir. 2000) (“We review for clear error the

district court’s factual findings supporting the application of a particular

sentencing guidelines provision and its legal conclusions de novo.”).

He argues that because he was only a middleman in the drug conspiracy,

the district court clearly erred in failing to provide for a mitigating role

adjustment. The mitigating role adjustment provides “a range of adjustments for

a defendant who plays a part in committing the offense that makes him

substantially less culpable than the average participant.” USSG § 3B1.2 cmt.

application note 3(A). But we have emphasized that “a defendant is not

necessarily entitled to a sentence reduction under § 3B1.2 solely because he can

show that he was a middleman.” United States v. Onheiber, 173 F.3d 1254, 1258

(10th Cir. 1999). Here, the court found that Llantada’s conduct warranted an

aggravating role adjustment, finding that he had the authority to negotiate a price

for the drugs.

In sum, Llantada fails to show the district court committed clear error here

in denying him the mitigating role adjustment.

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 II. Conclusion

We AFFIRM the district court’s sentence.

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No. 15-2082, United States v. Llantada

HOLMES, Circuit Judge, concurring.

I fully join Part I.B of the majority’s opinion. However, I concur only in

the majority’s result (i.e., judgment to affirm) regarding Part I.A. In summary

fashion, I pause to briefly note the two most salient reasons for the latter

determination.

First, contrary to the majority’s apparent view, I do not believe that Mr.

Llantada preserved his particularized-findings challenges to either the standard or

special conditions of his supervised release. Though Mr. Llantada did allude to a

particularized-finding obligation in his district court briefing, Mr. Llantada failed

to lodge any objection to the district court’s alleged failure to give particularized

findings when the court orally announced his sentence. As such, Mr. Llantada

forfeited his procedural objections to the court’s failure to make particularized

findings. See, e.g., United States v. Mendoza, 543 F.3d 1186, 1191 (10th Cir.

2008) (“A party must specifically object to the district court’s procedure in order

to preserve that issue for review.”); United States v. Romero, 491 F.3d 1173, 1177

(10th Cir. 2007) (clarifying that “the requirement of contemporaneous objection

to procedural errors is consistent with our precedent”); cf. United States v.

Rodebaugh, 798 F.3d 1281, 1302 (10th Cir. 2015) (“When the defendant objects

to a special condition of supervised release at the time it is announced, this Court

reviews for abuse of discretion.” (emphasis added) (quoting United States v.
Dougan, 684 F.3d 1030, 1034 (10th Cir. 2012))). And, on appeal, Mr. Llantada

has not argued for plain-error review; rather, he maintains that all of his

supervised-release challenges are preserved. Consequently, in my view, his

forfeited procedural challenges to the district court’s alleged failure to make

particularized findings are at “the end of the road”—that is, they are effectively

waived and should not be addressed on the merits. Richison v. Ernest Grp., Inc.,

634 F.3d 1123, 1131 (10th Cir. 2011); see, e.g., United States v. Lamirand, 669

F.3d 1091, 1100 n.7 (10th Cir. 2012) (“Mr. Lamirand has not asked us to review

his late-blooming argument for plain error. Accordingly, we decline to do so and

will not definitively opine on the merits of this argument.”). 1

Second, I do agree with the general gist of the majority’s opinion insofar as

it concludes that our precedent’s commonsense and non-technical approach to

interpreting supervised-release conditions 2 essentially disposes of Mr. Llantada’s

substantive vagueness challenges because, so construed, the conditions are not

1
In any event, as the majority notes, Mr. Llantada’s particularized-
findings objections are wholly without merit relative to, at the very least, the
district court’s standard conditions of supervised release; the district court was
not obliged to make such findings as to standard conditions. See United States v.
Martinez-Torres, 795 F.3d 1233, 1237 (10th Cir. 2015).
2
See, e.g., United States v. Muñ o z, --- F.3d ----, 2016 WL 502863, at
*3 (10th Cir. Feb. 9, 2016) (“With the gloss of common sense, the condition was
not too vague.”); United States v. Mike, 632 F.3d 686, 701 (10th Cir. 2011)
(concluding that the Ninth Circuit’s construction of supervised-release conditions
was “overly technical” and deciding to “opt instead for a more commonsense”
approach).

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unreasonable and the district court therefore did not abuse its discretion in

imposing them. But I also would hold that, to the extent that Mr. Llantada’s

substantive challenges are predicated on hypothetical improper applications of his

supervised-release conditions—which, under a commonsense, non-technical

construction are facially valid and reasonable—those challenges are not ripe and,

consequently, we must not consider them. See United States v. LeCompte, 800

F.3d 1209, 1214–15 (10th Cir. 2015) (noting that “courts have dismissed

challenges to conditions . . . based on a defendant’s fear of hypothetical

applications of the condition”); see also United States v. Rhodes, 552 F.3d 624,

629 (7th Cir. 2009) (rejecting as unripe a substantive supervised-release challenge

of a defendant serving a lengthy prison sentence where he “may only be affected

by the condition after a string of contingencies”); United States v. Schoenborn, 4

F.3d 1424, 1434 (7th Cir. 1993) (“The condition upon which Schoenborn’s claim

depends—revocation of his supervised release—has yet to occur (and may never

occur). The issue is not ripe for review . . . .”).

In his briefing and during oral argument, Mr. Llantada has repeatedly

argued that, even assuming that the challenged supervised-release conditions

could be read as imposing reasonable, legally-sound restrictions, because they are

vague, they also are susceptible to being unlawfully applied by the U.S. Probation

Office and the district court in oppressive and unreasonable ways. Therefore, he

contends that it is imperative that we clarify the express terms of those conditions

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to preclude such adverse possibilities. In this regard, Mr. Llantada has recounted

a proverbial parade of horribles—that is, examples of ostensibly oppressive or

unreasonable applications of his challenged supervised-release conditions that he

might possibly experience when he is released from prison.

For example, with reference to the condition that he “shall support his or

her dependents and meet other family responsibilities,” Mr. Llantada muses

regarding the “other family responsibilities” language, “Can a probation officer

file a petition to revoke a supervisee’s term of release if Mr. Llantada fails to

wash the dishes?” Aplt. Opening Br. at 24–25. Well, putting aside the fact that

the commonsense, nontechnical reading of the provision would not contemplate

this, cf. United States v. Muñ o z, --- F.3d ----, 2016 WL 502863, at *6 (10th Cir.

Feb. 9, 2016) (noting that an essentially identical condition is “naturally

understood to require only financial support”), if such a petition were ever filed

against Mr. Llantada, he surely would have a vehicle at that time to secure an

answer to the question—that is, an as-applied challenge. See LeCompte, 800 F.3d

at 1215 (noting that “allowing as-applied challenges to the condition accounts for

unanticipated applications”). Until then, any challenge by Mr. Llantada based on

such a hypothetical dish-washing violation is unripe and must not be considered.

In sum, in my view, Mr. Llantada’s procedural challenges to the district

court’s alleged failure to make particularized findings regarding his supervised-

release conditions were forfeited in the district court and should be deemed

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effectively waived on appeal. Furthermore, his substantive attacks on supervised-

release conditions fail when those conditions are read—as our precedent

demands—in a commonsense, non-technical way. The district court therefore did

not abuse its discretion in imposing those conditions. Mr. Llantada should act on

the presumption that the U.S. Probation Office and the district court will adopt a

commonsense, non-technical reading of the supervised-release conditions when

applying them to him upon his release from prison. And, if they do not, and

instead apply the conditions in unreasonable or arbitrary ways, then Mr. Llantada

may mount as-applied challenges at that time to this ostensibly unlawful action.

Mr. Llantada’s substantive challenges are unripe, insofar as they are predicated on

hypothetical instances of illegal applications of his supervised-release conditions.

For these two salient reasons, I concur only in the judgment as to Part I.A.

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