Case: 20-40817 Document: 00516459723 Page: 1 Date Filed: 09/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
September 6, 2022
No. 20-40817 Lyle W. Cayce
Clerk
United States of America,
Plaintiff—Appellee,
versus
Roberto Flores-Brewster,
Defendant—Appellant.
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:19-CR-997-3
Before Jones, Stewart, and Duncan, Circuit Judges.
Per Curiam:*
Having plead guilty of conspiring to transport illegal aliens, Roberto
Flores-Brewster contests a sentence enhancement for endangering the aliens
by carrying them in a secret compartment beneath a tractor-trailer. He also
contests several special conditions of supervised release included in the
written judgment. We affirm.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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I. Facts and Proceedings
In 2019, Roberto Flores-Brewster pleaded guilty of conspiracy to
transport aliens within the United States. See 8 U.S.C. § 1324(a)(1)(A)(ii),
1324(a)(1)(A)(v)(II). His PSR calculated a total offense level of 33, including
a two-level enhancement for intentionally or recklessly creating a substantial
risk of death or serious bodily injury to another person. See U.S.S.G.
§ 2L1.1(b)(6). The enhancement was based on evidence that, as part of the
conspiracy, an alien had reported being transported from the Rio Grande
Valley to San Antonio for four hours in a “small, confined compartment”
underneath a tractor-trailer with no way to contact the driver. The PSR found
these circumstances could expose the alien to substantial risk of “death in
the event of an accident and[/]or asphyxiation should she have been
abandoned.” The PSR also reported Flores-Brewster’s history of alcohol,
cocaine, and marijuana use, along with numerous supervised release
violations based on drug abuse and failure to attend court-ordered drug
treatment. Finally, an appendix to the PSR listed recommended conditions
of supervised release.
Flores-Brewster objected to the two-level enhancement, which the
district court overruled. After the parties agreed to various changes to the
PSR’s calculations, which the court accepted, Flores-Brewster’s total
offense level was 24 and his criminal history category was IV, resulting in a
guidelines range of 77 to 96 months’ imprisonment. The court sentenced
Flores-Brewster to 85 months’ imprisonment and a three-year term of
supervised release.
As part of the orally pronounced supervised release conditions, the
court required Flores-Brewster “to comply with the standard conditions
adopted by the Court,” required him “to participate in drug and alcohol
treatment,” pronounced several other conditions, and stated that “[a]ll of
these conditions are as set out in the appendix to the [PSR].” At defense
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counsel’s suggestion, the court also recommended Flores-Brewster for the
Bureau of Prisons’ drug treatment program. Flores-Brewster did not object
to the sentence imposed.
The written judgment included four mandatory and 14 standard
conditions of supervised release. It also included six “special” conditions:
(1) participate in (and pay for, if able) an inpatient or outpatient substance-
abuse treatment program under the probation officer’s supervision; (2) the
same provision for an alcohol-abuse treatment program; (3) not possess a
controlled substance without a prescription; (4) submit to (and pay for, if
able) substance-abuse testing; (5) not use or possess alcohol; and (6) not use
or possess any psychoactive substances without the probation officer’s prior
approval.
Flores-Brewster timely appealed his sentence.
II. Standard of Review
Flores-Brewster challenges the special conditions in his written
judgment on various grounds. Because Flores-Brewster did not object to any
of the conditions, our standard of review depends of whether he had notice
and an opportunity to object. See United States v. Diggles, 957 F.3d 551, 559–
60 (5th Cir.) (en banc), cert. denied, 141 S. Ct. 825 (2020). If he did, we review
for plain error. See United States v. Mejia-Banegas, 32 F.4th 450, 451 (5th Cir.
2022) (per curiam) (citation omitted). If he did not, we review for abuse of
discretion. See United States v. Grogan, 977 F.3d 348, 353 (5th Cir. 2020)
(citations omitted). Flores-Brewster also challenges the two-level sentencing
enhancement under U.S.S.G. § 2L1.1(b)(6). We review the district court’s
application of the Sentencing Guidelines de novo and the court’s factual
findings for clear error. United States v. Landreneau, 967 F.3d 443, 449 (5th
Cir. 2020) (citation omitted).
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III. Discussion
A. Delegation of Authority to Probation Officer
Flores-Brewster challenges the substance-abuse treatment condition
insofar as it authorizes his probation officer to designate inpatient or
outpatient treatment. He argues our review of this discretionary condition 1
should be for abuse of discretion because he lacked opportunity to object. We
disagree. As the government points out, the district court orally pronounced
that Flores-Brewster must “participate in drug and alcohol treatment.”
Moreover, the PSR discussed Flores-Brewster’s history of substance abuse,
highlighting that he “was ordered to attend drug treatment” while on
supervised release but “failed to attend[,] resulting in numerous violations.”
Ample testimony discussed Flores-Brewster’s “serious drug addiction
problem” and his need for “a lot of help” including placement “get[ting]
him to a rehab center.” Given his “constant substance abuse,” his attorney
asked that substance-abuse treatment such as a “rehab facility” be
“available.” In light of all this, we conclude that “at a minimum” Flores-
Brewster had an opportunity “to ask for more specificity about the
[substance-abuse treatment] conditions” orally pronounced by the court.
United States v. Martinez, 15 F.4th 1179, 1181 (5th Cir. 2021). We therefore
review for plain error. See United States v. Hernandez, No. 21-40161, 2022
WL 1224480, at *3 (5th Cir. Apr. 26, 2022) (per curiam).
Brewster cannot show plain error. To be “plain,” “the legal error
must be clear or obvious, rather than subject to reasonable dispute.” Puckett
v. United States, 556 U.S. 129, 135 (2009) (citing United States v. Olano, 507
1
A discretionary condition of supervised release—i.e., one not required by 18
U.S.C. § 3583(d)—must be orally pronounced. See Diggles, 957 F.3d at 559, 563. A
condition requiring participation in a substance-abuse program falls within this category.
United States v. Garcia, 983 F.3d 820, 823–24 (5th Cir. 2020); United States v. Gomez, 960
F.3d 173, 179–80 (5th Cir. 2020).
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U.S. 725, 734 (1993)). Our court’s decisions evaluate a probation officer’s
delegated authority to determine inpatient or outpatient treatment based in
part on sentence length. See United States v. Martinez, 987 F.3d 432, 436 (5th
Cir. 2021) (delegation impermissible under a 10-month sentence); United
States v. Medel-Guadalupe, 987 F.3d 424, 431 (5th Cir. 2021) (delegation
permissible under a 10-year sentence); see also United States v. Huerta, 994
F.3d 711, 716 (5th Cir. 2021) (reconciling cases in part on this basis).
Brewster’s 85-month sentence falls between the sentences in
Martinez and Medel-Guadalupe. “[B]ecause we have never passed on the
significance (if any) of the length of a sentence falling between those in
Martinez and Medel-Guadalupe, this matter remains subject to ‘reasonable
debate’ and a lack of ‘clear or obvious’ error is a given.” United States v.
Aguilar-Cerda, 27 F.4th 1093, 1096 (5th Cir. 2022) (quoting United States v.
Ortega, 19 F.4th 831, 834 (5th Cir. 2021)). Brewster therefore cannot
establish plain error. See United States v. Huerta, No. 19-41018, 2022 WL
68974, at *2 (5th Cir. Jan. 6, 2022) (finding no plain error on
inpatient/outpatient delegation because law is unsettled); United States v.
Johnson, 850 F. App’x 279, 280 (5th Cir. 2021) (per curiam) (same).
B. Remaining Special Conditions
Flores-Brewster seeks vacatur of the remaining special conditions in
the written judgment insofar as they are discretionary, were not orally
pronounced, and conflict with the orally pronounced conditions. “[W]here
the oral pronouncement and written judgment conflict, the oral
pronouncement controls.” United States v. Tanner, 984 F.3d 454, 456 (5th
Cir. 2021) (citation omitted). “A conflict exists where the written judgment
broadens the restrictions or requirements of supervised release from an oral
pronouncement or imposes a more burdensome requirement.” Sealed
Appellee v. Sealed Appellant, 937 F.3d 392, 400 (5th Cir. 2019) (cleaned up).
If, however, “the written judgment simply clarifies an ambiguity in the oral
5
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pronouncement, we look to the sentencing court’s intent to determine the
sentence.” Tanner, 984 F.3d at 456 (citation omitted). Intent is determined
from “the entire record.” Ibid. (citation omitted). 2
We consider each of the challenged special conditions in turn. 3
(1). Costs of Substance-Abuse Treatment.
Our precedent forecloses Flores-Brewster’s challenge to the
requirement that he pay the costs of substance-abuse treatment. 4 A condition
requiring the defendant to pay for such treatment, even when first mentioned
in the written judgment, creates at most an ambiguity that may be resolved
by examining the record for evidence of the district court’s intent. See, e.g.,
United States v. Vega, 332 F.3d 849, 852 (5th Cir. 2003); United States v.
Zavala, 835 F. App’x 767, 768 (5th Cir. 2021) (per curiam). The record
plainly manifests the district court’s intent that Flores-Brewster participate
in drug treatment. So, no conflict exists between the written judgment and
oral pronouncement. Vega, 332 F.3d at 852 (“As the requirement that a
defendant bear the costs of his drug treatment is ‘clearly consistent’ with the
2
Diggles did not change our law on the distinction between conflicts and
ambiguities in oral pronouncements and written judgments. See 957 F.3d at 563; see also,
e.g., Tanner, 984 F.3d at 455–57; United States v. Madrid, 978 F.3d 201, 207 (5th Cir. 2020).
3
The government agrees with Flores-Brewster that the last four special conditions
were not pronounced and conflict with the written judgment, so we should remand for the
district court to remove them. But we are “not bound by the [g]overnment’s concession,
and we ‘give the issue independent review.’” United States v. Castaneda, 740 F.3d 169, 171
(5th Cir. 2013) (per curiam) (citation omitted).
4
Flores-Brewster does not generally challenge the requirement that he participate
in substance-abuse treatment, only that he pay for that treatment. He also raises no
challenge to a separate, nearly identical special condition requiring him to pay for alcohol-
abuse treatment.
6
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court’s intent that he attend treatment, the two judgments do not conflict and
no modification of the sentence is warranted.”). 5
(2). Possessing Controlled Substances Without a Prescription.
Flores-Brewster’s challenge to this condition also fails. The district
court was not required to pronounce the condition barring him from
possessing controlled substances without a prescription because it is covered
by the mandatory condition “that the defendant not unlawfully possess a
controlled substance.” 18 U.S.C. § 3583(d); see Tex. Health & Safety
Code Ann. § 481.117 (criminalizing possession of controlled substance
without prescription); Hernandez, 2022 WL 1224480, at *3 (finding no error
where court included same condition in written judgment without
pronouncement because it overlaps with section 3583(d)); cf. United States v.
Vasquez-Puente, 922 F.3d 700, 705–06 (5th Cir. 2019) (finding no abuse of
discretion where “no reentry” special condition duplicated mandatory
condition that defendant not reenter country illegally). 6
(3). Submitting to (and Paying for) Substance-Abuse Testing.
We reject Flores-Brewster’s challenge to this condition because it
creates no conflict with the oral pronouncement. The district court orally
required Flores-Brewster to participate in a drug treatment program.
Moreover, he was already required, as a mandatory condition of release, to
submit to some drug testing. So, the drug-testing condition here does not
conflict with the oral pronouncement of sentence. See, e.g., United States v.
Lozano, 834 F. App’x 69, 75 (5th Cir. 2020) (per curiam) (no conflict
between special drug-testing condition and oral pronouncement because
5
We therefore need not determine whether we should review this issue for plain
error or abuse of discretion.
6
We therefore need not determine whether we should review this issue for plain
error or abuse of discretion.
7
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defendant “was already obligated to participate in a drug-treatment program
and, as a mandatory condition of release, submit to some drug testing”)
(citing Vega, 332 F.3d at 854). 7 Nor does requiring payment for testing create
a conflict. See ibid. (citing Vega, 332 F.3d at 852; United States v. Thomas, No.
19-20520, 830 F. App’s 420, 423–25 (5th Cir. Oct. 8, 2020); United States v.
Warden, 291 F.3d 363, 365 (5th Cir. 2002)). 8
(4). Use and Possession of Alcohol and Psychoactive Substances.
We also affirm the conditions that Brewster not possess or use alcohol
or any psychoactive substances, including synthetic marihuana or bath salts.
The PSR describes Brewster’s abuse of alcohol, marihuana, and cocaine. It
also details his lengthy criminal history, including four convictions for driving
while intoxicated and four convictions for narcotics possession. At
sentencing, his brother testified to Brewster’s “real serious drug habit,”
noting his drug of choice was synthetic marihuana. The record accordingly
reflects that the special alcohol and psychoactive-substances conditions “are
consistent with the orally-pronounced condition[s] that [Brewster] undergo
[alcohol and] drug treatment and the district court’s intention that [he]
receive treatment for his extensive substance abuse and alcohol issues.”
Zavala, 835 F. App’x at 768 (affirming same alcohol and psychoactive-
substances conditions); see also Lozano, 834 F. App’x at 75 (affirming same
psychoactive-substances condition given “the evidence of [defendant]’s
history of cocaine and alcohol abuse and the orally pronounced supervised
release conditions requiring him to participate in substance- and alcohol-
7
Cf. United States v. Johnson, 850 F. App’x 894, 895, 896–97 (5th Cir. 2021) (per
curiam) (finding written special drug-testing condition conflicted with oral pronouncement
where oral pronouncement did not order participation in drug treatment program).
8
We therefore need not determine whether we should review this issue for plain
error or abuse of discretion.
8
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abuse treatment programs”). Those conditions do not create a conflict with
the orally pronounced sentence. 9
C. Two-Level Enhancement Under U.S.S.G. § 2L1.1(b)(6)
Finally, Flores-Brewster challenges the two-level sentencing
enhancement under U.S.S.G. § 2L1.1(b)(6) for creating a substantial risk of
death or serious injury to another. The district court applied this
enhancement based on evidence—in the form of text messages a material
witness received from the transported alien, “Cristelia”—showing aliens
were transported in a confined compartment beneath a tractor-trailer for
several hours without any way of communicating with the driver. Flores-
Brewster argues the district court improperly based its findings “on
uncorroborated double hearsay relayed by an unidentified witness.” While
we usually review an application of the Sentencing Guidelines de novo (and
factual findings for clear error), see Landreneau, 967 F.3d at 449, the
government argues we should review for plain error because Flores-Brewster
did not properly preserve this issue. We need not resolve this dispute because
there was no error under either standard. United States v. Perryman, 965 F.3d
424, 427 (5th Cir. 2020).
At sentencing, a “court may consider relevant information without
regard to its admissibility under the rules of evidence applicable at trial,
provided that the information has sufficient indicia of reliability to support its
probable accuracy.” U.S.S.G. § 6A1.3(a); see also United States v. Malone, 828
F.3d 331, 337 (5th Cir. 2016) (citation omitted) (interpreting this language
“to require that the facts used by the district court for sentencing purposes
be reasonably reliable”). Accordingly, we have held that, “for sentencing
purposes, even ‘uncorroborated hearsay evidence’ is sufficiently reliable.”
9
We therefore need not determine whether we should review this issue for plain
error or abuse of discretion.
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United States v. Collins, 774 F.3d 256, 265 (5th Cir. 2014) (quoting United
States v. West, 58 F.3d 133, 138 (5th Cir. 1995)).
The disputed text messages relied on by the district court were
sufficiently reliable. In them, Cristelia, an illegal alien, described to Landez-
Mimiaga, an illegal alien and material witness, how and when aliens would be
transported in precise detail. Moreover, Cristelia’s statements were
corroborated by evidence from other co-conspirators that they used tractor
trailers to transport illegal aliens in an unsafe manner. See, e.g., United States
v. Smith, 359 F. App’x 491, 492–93 (5th Cir. 2010) (per curiam) (affirming
enhancement based on double hearsay where defendant did not show it was
unreliable or untrue); see also United States v. Rico, 864 F.3d 381, 386 (5th Cir.
2017) (“Statements by coconspirators are sufficiently reliable to form the
basis of a finding.” (citations omitted)).
The district court did not err, clearly or otherwise, in finding these
conditions of transport created a substantial risk of death or bodily injury. We
consider five factors when applying § 2L1.1(b)(6): “the availability of oxygen,
exposure to temperature extremes, the aliens’ ability to communicate with
the driver of the vehicle, their ability to exit the vehicle quickly, and the
danger to them if an accident occurs.” United States v. Zuniga-Amezquita,
468 F.3d 886, 889 (5th Cir. 2006). These factors were amply met here, as the
district court explained in detail:
[W]e don’t have here a situation where the alien just said it was
“awful,” we have much more than that. It is a compartment
not intended for passenger travel, she has no real way to
communicate should there be some emergency come up. Also,
in the event of an accident it’s highly unlikely that anybody
would be looking for passengers in that small compartment.
And it is a small compartment, although we don’t have any real
information as far as ventilation, the Court, I think, from the
description that is given, does believe that that would be an
issue, as well.
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These findings are plausible and support the enhancement. See, e.g.,
Zuniga-Amezquita, 468 F.3d at 889 (“Transporting aliens in a manner that
significantly hinders their ability to exit the vehicle quickly creates a
substantial risk of death or serious bodily injury.”); United States v.
Rodriguez-Mesa, 443 F.3d 397, 403 (5th Cir. 2006) (affirming enhancement
where illegal alien was transported in “contorted position” where he “could
not have easily extricated himself”); see also United States v. Johnson, 369 F.
App’x 569, 573 (5th Cir. 2010) (per curiam) (affirming enhancement where
illegal aliens “confined in close quarters” and “wedged into a small cabinet”
“would face significant difficulties in attempting to exit the vehicle”).
IV.
Flores-Brewster’s sentence is AFFIRMED.
11