[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 08-14077 FEB 18, 2009
Non-Argument Calendar THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 08-00004-CR-01-2
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ALDO ARNALDO GUZMAN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(February 18, 2009)
Before BLACK, BARKETT and FAY, Circuit Judges.
PER CURIAM:
Aldo Arnaldo Guzman appeals the district court’s imposition of a special
condition of supervised release, requiring him to inform the probation officer in
writing of his address in Mexico within 72 hours of his deportation from the
United States. For the reasons set forth below, we affirm.
I.
A federal grand jury returned a single-count indictment against Guzman,
charging him with being an alien found within the United States without
authorization after having been previously deported and removed from the country,
in violation of 8 U.S.C. § 1326(a) and (b)(2). At the plea hearing, the government
proffered that, on January 23, 2008, agents from Immigration and Customs
Enforcement (“ICE”) encountered Guzman in a jail in Hall County, Georgia, and
asked whether he was legally present in the United States. Guzman responded that
he was not legally present, and he provided a sworn statement to the agents
admitting that he was a Mexican national who had re-entered the country without
permission after having been previously deported. Guzman pled guilty to the lone
count in the indictment.
The probation officer prepared a presentence investigation report (“PSI”), in
which he set out Guzman’s offense conduct as follows: In January 2008, local law
enforcement in Hall County, Georgia, contacted Special Agent David Silka of ICE
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and informed him that Guzman had been detained for questioning regarding his
immigration status. Silka then reviewed Guzman’s immigration file and
discovered that, on May 17, 2007, Silka and members of the Hall County Gang
Task Force encountered Guzman in his residence in Georgia “following a state and
federal operation to locate and apprehend subjects who were illegally in the United
States.” At that time, Guzman informed Silka that he had crossed the border into
the United States from Mexico at a “very early age.” Guzman was deported to
Mexico in July 2007. Silka interviewed Guzman on January 23, 2008, at which
time Guzman admitted that, three weeks earlier, he had paid a smuggler $2,000 to
help him enter the United States.
The probation officer explained that Guzman’s parents were permanent
residents in the United States at the time of his birth but, for an unknown reason,
his mother returned to Mexico to give birth to Guzman. When Guzman was two or
three years old, his father returned to the United States and “smuggled” Guzman
into the country. Guzman had no relatives or friends in Mexico, as Guzman’s
parents, 3 siblings, girlfriend of 6 years, and 20-month old child all lived in
Georgia.
At the sentencing hearing, the parties confirmed that they had no objections
to the PSI, and, therefore, the district court adopted its findings of fact and
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guideline calculations. The court adjudicated Guzman guilty of the offense in the
indictment, sentenced him to six months’ imprisonment, and waived the fine. The
court also imposed a term of supervised release of one year, to begin upon
Guzman’s release from custody. The court included the following conditions of
supervision:
Within 72 hours of release from the custody of the Bureau of Prisons
the defendant shall report in person to the probation office in the
district to which the defendant is released.
If deported, then the defendant shall report within 72 hours of
deportation to the United States Probation Office in the Northern
District of Georgia in writing his current address.
After the court emphasized Guzman’s youth, cautioned him about returning
to the United States, and instructed him to make a good life for himself in Mexico,
the court asked if the parties had any objections to the sentence. At that point, the
following exchange took place:
DEFENSE COUNSEL: Your Honor, I have no objections to the
sentence other than the reporting within 72
hours in writing from Mexico. I think that’s
a condition of supervised release that he
cannot fulfill. When he’s taken from the jail
they don’t let him take any papers with him,
he’s put on a bus or a plane to Mexico, he is
not taken home. He is dropped off.
COURT: They don’t have pencil and paper in
Mexico?
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DEFENSE COUNSEL: Well, you have to have resources to buy it,
your Honor, and you have to know where to
send the address and I would submit that’s
beyond the court’s jurisdiction to impose.
COURT: In my opinion that’s an absurd objection.
Probation is meaningless if he’s not required
to report where he is living, and if the Court
of Appeals wants to say that’s an illegal
condition, then I certainly will abide by it,
but that’s absolutely absurd. And I – you
have a right to appeal that sentence if you
wish to do so.
Guzman appealed from the court’s judgment of conviction.
II.
“We review the district court’s imposition of a special condition of
supervised release for abuse of discretion, so long as the objection was preserved
for appeal.” United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir. 2003). With
respect to the district court’s authority to impose special conditions of supervised
release, 18 U.S.C. § 3583(d) provides in pertinent part:
The court may order, as a further condition of supervised release, to
the extent that such condition –
(1) is reasonably related to the factors set forth in section 3553(a)(1),
(a)(2)(B), (a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section 3553(a)(2)(B),
(a)(2)(C), and (a)(2)(D); and
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(3) is consistent with any pertinent policy statements issued by the
Sentencing Commission pursuant to 28 U.S.C. 994(a);
any condition set forth as a discretionary condition of probation in
section 3563(b) and any other condition it considers to be
appropriate . . . .
18 U.S.C. § 3583(d); see also U.S.S.G. § 5D1.3(b); United States v. Okoko, 365
F.3d 962, 965 n.5 (11th Cir. 2004) (“Because . . . § 5D1.3 mirrors the language
used in this statute, we consider it together with 18 U.S.C. § 3583(d) in reviewing
the district court’s imposition of a special condition on a supervised release.”).
III.
Thus, the district court was authorized to impose its reporting requirement
under this “catchall” provision in § 3583(d) so long as the requirement satisfied the
above statutory criteria. See United States v. Zinn, 321 F.3d 1084, 1089 (11th Cir.
2003) (recognizing that, under § 3583(d), the “district court may impose any
condition of supervised release it deems appropriate so long as it comports with the
factors enumerated in § 3553(a)”). In this respect, not only did the district court
apparently consider its reporting requirement to be “appropriate,” but this
requirement is also encompassed by two discretionary conditions of probation in
18 U.S.C. § 3563(b). See 18 U.S.C. § 3563(b)(15) (authorizing the court to require
the defendant to “report to a probation officer as directed by the court or the
probation officer”); id. § 3563(b)(17) (authorizing the court to require the
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defendant to “notify the probation officer promptly of any change in address or
employment”).
Guzman contends that the court did not satisfy the first statutory criterion in
§ 3583(d) because its reporting requirement was not reasonably related to the
applicable § 3553(a) factors. The applicable § 3553(a) factors that the court must
consider are:
(1) the nature and circumstances of the offense and the history and
characteristics of the defendant;
(2) the need for the sentence imposed –
...
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defendant; and
(D) to provide the defendant with needed educational or vocational
training, medical care, or other correctional treatment in the most
effective manner . . . .
18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D); see 18 U.S.C. § 3583(d)(1). We have
recognized that “the special condition imposed need not be related to each factor
listed . . . to avoid a determination that the court abused its discretion.” United
States v. Bull, 214 F.3d 1275, 1278 (11th Cir. 2000). “Instead, each factor is an
independent consideration to be weighed.” Id.
Specifically, Guzman contends that, because the government would be
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aware of Guzman’s deportation, the court’s reporting requirement had no practical
purpose and was not reasonably related to any of the above § 3553(a) factors. The
reporting requirement, however, was not imposed to confirm that Guzman was in
fact deported, but was rather designed to ensure that he remained in Mexico. The
reporting requirement reasonably seeks to accomplish this objective by
discouraging Guzman from immediately re-entering the United States, and, more
importantly, by allowing the probation officer to monitor his location. Ensuring
that Guzman remained in Mexico was strongly related to his unlawful re-entry
offense, was specifically designed to deter him from unlawfully re-entering again,
and, in this respect, would help protect the public from any future attempt by
Guzman to unlawfully re-enter the country. See 18 U.S.C. § 3553(a)(1),
(a)(2)(B)-(C). Thus, because the court’s reporting requirement was reasonably
related to several of the applicable § 3553(a) factors, it satisfied § 3583(d)(1). See
Bull, 214 F.3d at 1278.
Guzman also argues, as he did at sentencing, that it would be “practically
impossible” for him to satisfy the reporting requirement in light of the lack of
financial resources and family support available upon his arrival in Mexico.
Although he does not phrase it as such, this argument presumably relates to
§ 3583(d)(2), providing that the court’s condition of supervision must not involve a
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deprivation of liberty greater than reasonably necessary. 18 U.S.C. § 3583(d)(2).
In this case, there is nothing in the record to support Guzman’s assertion that he
would be financially incapable of informing the probation officer in writing of his
address in Mexico within 72 hours of his deportation. Thus, the district court did
not abuse its discretion on this point. See Taylor, 338 F.3d at 1283 (“We will
reverse [for abuse of discretion] only if we have a definite and firm conviction that
the district court committed a clear error of judgment in the conclusion it
reached.”) (quotation and alteration omitted).
With respect to the third statutory criterion, Guzman does not argue that the
court’s reporting requirement is inconsistent with any policy statement issued by
the Sentencing Commission and, therefore, he has abandoned any such contention.
United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (stating that
arguments not raised on appeal are abandoned).
In sum, the district court was authorized under § 3583(d) to impose its
reporting requirement,1 and, because this requirement satisfied the three statutory
criteria, the court did not abuse its discretion in doing so. Accordingly, we affirm.
AFFIRMED.
1
We reject Guzman’s remaining two arguments challenging the court’s authority under
§ 3583(d). First, Guzman’s reliance on the canon of statutory construction known as expressio unius
est exclusio alterius is without merit because the specific reference to deportation in § 3583(d) did
not, by negative implication, preclude the court from imposing the reporting requirement under
§ 3583(d)’s catchall provision. Second, Guzman’s reliance on our decision in Okoko – holding that
the district court may not toll a period of supervised release while a defendant is lawfully outside
the United States – is without merit because the court’s condition took effect upon Guzman’s arrival
in Mexico. See 365 F.3d at 964-67.
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