United States Court of Appeals
Fifth Circuit
F I L E D
In the November 28, 2005
United States Court of Appeals Charles R. Fulbruge III
for the Fifth Circuit Clerk
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m 04-40644
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
WILBERT MARTIN ARBIZU,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m 1:04-CR-111-ALL
______________________________
Before DAVIS, SMITH, and DENNIS, was not again to reenter the country illegally.
Circuit Judges. In 2004, while still under supervised release,
Arbizu was convicted of another illegal reentry
PER CURIAM: and sentenced to a two-year prison term.
Because he had violated the terms of his ex-
In 2001, Wilbert Arbizu pleaded guilty of isting supervised release by illegally reentering,
illegally reentering the United States and was the district court revoked Arbizu’s supervised
sentenced to a prison term followed by a release and imposed an additional one-year
three-year term of supervised release. As a sentence for the 2001 illegal reentry.
condition of the supervised release, Arbizu
Arbizu asserts that he cannot be held liable §§ 3583(f) and 3603(1) is to ensure that the
for violating the terms of his supervised release defendant is notified of the conditions of his
because he did not receive written notice of supervised release. Congress decided that re-
the conditions of the release as required by 18 quiring the probation officer to provide the de-
U.S.C. §§ 3583(f) and 3603(1). The gov- fendant with written notice of the conditions is
ernment concedes that it cannot prove compli- the best way to ensure the defendant knows
ance with the statutory notice requirements, what is expected of him during the supervised
but it argues that Arbizu had actual notice of release period. It would be patently unfair to
his supervised release conditions despite its revoke a defendant’s supervised release and
non-compliance and that such notice is suffi- send him back to prison for violating condi-
cient to hold him liable for violating those tions of the release that he had no way of
conditions. knowing existed.
A district court may revoke a term of su- Congress, however, did not decide that a
pervised release on finding, by a preponder- defendant who does not receive the proper
ance of the evidence, that the defendant vio- written notice should be immune from revoca-
lated a condition of supervised release. See tion of supervised release. A defendant who
18 U.S.C. § 3583(e)(3). A district court’s re- knows that his supervised release terms bar
vocation of supervised release is reviewed for certain conduct should not be allowed to en-
abuse of discretion. United States v. McCor- gage in that conduct and then hide behind the
mick, 54 F.3d 214, 219 (5th Cir. 1995). government’s failure to follow statutory notice
procedures during sentencing.
Whether failure to provide written notice of
the terms of supervised release automatically We conclude, therefore, that failure to pro-
invalidates a revocation of such release if the vide written notice of the conditions of super-
defendant received actual notice of the condi- vised release does not automatically invalidate
tions is an issue of first impression in this cir- a revocation of such release if the defendant
cuit. The statutes are silent on the question. received actual notice of the conditions im-
posed. Based on our review of the record, we
Every other circuit that has confronted this see no reason to doubt the district court’s find-
issue has held that the government’s failure to ing that Arbizu received such actual notice.
provide the notice required by the statutes
does not limit the district court’s authority to The district court did not abuse its discre-
revoke supervised release where the defendant tion when it revoked Arbizu’s supervised re-
had actual notice of the release terms. See lease. The judgment is AFFIRMED.
United States v. Ortega-Brito, 311 F.3d 1136,
1138 (9th Cir. 2002); United States v. Felix,
994 F.2d 550, 551 (8th Cir. 1993); United
States v. Ramos-Santiago, 925 F.2d 15, 17
(1st Cir. 1991).
Although these cases are not controlling in
this circuit, the sentiments underlying their
holdings are persuasive. The purpose of
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