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United States v. Salazar

United States Court of Appeals, Fifth Circuit

February 24, 2014

UNITED STATES OF AMERICA, Plaintiff--Appellee
v.
SAMMY SALAZAR, Defendant--Appellant

Page 446

Appeal from the United States District Court for the Western District of Texas.

For UNITED STATES OF AMERICA, Plaintiff - Appellee: Joseph H. Gay, Jr., Assistant U.S. Attorney, Diane D. Kirstein, U.S. Attorney's Office, Western District of Texas, San Antonio, TX.

For SAMMY SALAZAR, Defendant - Appellant: Donna F. Coltharp, Assistant Federal Public Defender, M. Carolyn Fuentes, Federal Public Defender's Office, Western District of Texas, San Antonio, TX.

Before HIGGINBOTHAM, CLEMENT, and PRADO, Circuit Judges.

OPINION

Page 447

EDWARD C. PRADO, Circuit Judge:

Defendant--Appellant Sammy Salazar (" Salazar" ) violated the terms of his supervised release, and was sentenced to a prison term plus an additional period of supervised release. The parties dispute both the standard of review and the legality of a special condition of supervised release imposed on Salazar. We review the district court's sentencing conditions for an abuse of discretion, and hold that the district court abused its discretion by imposing the challenged condition on Salazar without demonstrating that it is reasonably related to the statutory factors.

I. FACTUAL AND PROCEDURAL BACKGROUND

Salazar was serving a suspended sentence of ten years for his conviction of third-degree sexual abuse when, in 2011, he was found guilty of failing to register as a sex offender under the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250 (" SORNA" ). Salazar was sentenced to time served plus fifteen years of supervised release. The district court imposed nine special conditions to be followed during his period of supervised release, and he appealed, arguing that Special Conditions Nos. 2 through 8 were not announced orally at his sentencing hearing. The government filed an unopposed motion to modify the judgment to conform to the oral pronouncement by striking those conditions, which this court granted. United States v. Salazar, No. 11-50843, (5th Cir. Feb. 8, 2012) (three-judge order).

In 2012, Salazar's probation officer moved to revoke his supervised release, alleging that he committed a crime of family assault, failed to notify his probation officer within 72 hours of his arrest, and failed to meet with a sex offender counselor as required by his probation officer, all

Page 448

violations of conditions of his supervised release that this court did not strike. The district court then revoked Salazar's supervised release term and imposed a prison term of twelve months, to be followed by fourteen years of supervised release. The court also imposed nine supervised release conditions, including Special Condition No. 6 (" Condition No. 6" ), which requires Salazar to " refrain from purchasing, possessing, or using any sexually stimulating or sexually oriented materials including but not limited to written, audio and visual depictions, such as, pornographic books, magazines, photographs, films, videos, DVDs, computer programs, or any other media for portrayal of the same."

The court announced the conditions at Salazar's sentencing hearing, after which his counsel, Angela Saad, asked to approach. The court responded, " Those are conditions, Ms. Saad. Those are going to be added today. I'm adding them. Those are new." Counsel stated, " Then, Your Honor, we would object to the additional conditions." The court replied, " No, you can't, Ms. Saad, because this is a new judgment and a new order." Counsel then stated, " Your Honor, we--for the record, preserving my client's...." at which point the court told counsel, " You better be specific what your objection is." When counsel asked to approach, the following discussion took place:

THE COURT: Counsel, I'm aware that this is what went up on appeal because they weren't written at the time of the sentence. This is not the original sentence. This is a new sentence on revocation. I am adding these conditions. I may do so under the terms of the supervised release and a revocation. So these are additional conditions that I am imposing on the revocation.
SAAD: Then Your Honor, we would object and make a new objection that they're overly burdensome and - -
THE COURT: Overruled, ...

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