United States Court of Appeals - Houston, Texas 19-40001 Appellee...No. 19-40001 USA v. Arnoldo Belmontes, Jr. USDC No. 7:14-CR-745-1 Dear Ms. Haden, You must submit the 7 paper copies

United States Court of Appeals FIFTH CIRCUIT

OFFICE OF THE CLERK LYLE W. CAYCE

CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

May 29, 2019

Ms. Katherine Lisa Haden U.S. Attorney's Office Southern District of Texas 1000 Louisiana Street Suite 2300 Houston, TX 77002 No. 19-40001 USA v. Arnoldo Belmontes, Jr. USDC No. 7:14-CR-745-1 Dear Ms. Haden, You must submit the 7 paper copies of your brief required by 5th Cir. R. 31.1 within 5 days of the date of this notice pursuant to 5th Cir. ECF Filing Standard E.1. Failure to timely provide the appropriate number of copies may result in the dismissal of your appeal pursuant to 5th Cir. R. 42.3. Exception: As of July 2, 2018, Anders briefs only require 2 paper copies. If your brief was insufficient and required corrections, the paper copies of your brief must not contain a header noting "RESTRICTED". Therefore, please be sure that you print your paper copies from this notice of docket activity and not the proposed sufficient brief filed event so that it will contain the proper filing header. Alternatively, you may print the sufficient brief directly from your original file without any header. Sincerely, LYLE W. CAYCE, Clerk

By: _________________________ Angelique B. Tardie, Deputy Clerk 504-310-7715 cc: Mr. Michael Lance Herman Ms. Marjorie A. Meyers Ms. Carmen Castillo Mitchell Ms. Kathryn Shephard

Case: 19-40001 Document: 00514974266 Page: 1 Date Filed: 05/28/2019

No. 19-40001 __________________________

IN THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARNOLDO BELMONTES, JR., Defendant-Appellant.

__________________________

On Appeal from the United States District Court For the Southern District of Texas

McAllen Division, Case No. 7:14-CR-745-1 __________________________

BRIEF OF PLAINTIFF-APPELLEE

__________________________ RYAN K. PATRICK United States Attorney CARMEN CASTILLO MITCHELL Chief, Appellate Division KATHERINE L. HADEN Assistant United States Attorney Attorneys for Appellee 1000 Louisiana, Ste. 2300 Houston, Texas, 77002 (713) 567-9102


i

STATEMENT REGARDING ORAL ARGUMENT

Oral argument is unnecessary in this case. The facts and legal

arguments are adequately presented in the briefs and record, and oral

argument would not significantly aid the decisional process. Fed. R. App.

P. 34(a)(2)(C).


ii

TABLE OF CONTENTS Page STATEMENT REGARDING ORAL ARGUMENT ................................... i

STATEMENT OF JURISDICTION .......................................................... 2

STATEMENT OF THE ISSUES ............................................................... 2

STATEMENT OF THE CASE .................................................................. 3

A. Initial Offense, Indictment and Sentencing ........................... 3

B. Petition for Revocation of Supervised Release ....................... 7

C. Supervised Release Revocation Sentencing Worksheet ....... 12

D. Revocation Hearing ............................................................... 13

SUMMARY OF ARGUMENT ................................................................. 18

ARGUMENT ........................................................................................... 21

I. BELMONTES’S ARGUMENT THAT THE DISTRICT COURT PLAINLY ERRED BY GIVING DOMINANT WEIGHT TO IMPERMISSIBLE SENTENCING FACTORS UNDER 18 U.S.C. § 3553(a)(2)(A) IN IMPOSING A MANDATORY REVOCATION SENTENCE UNDER 18 U.S.C. § 3583(g) SHOULD BE REJECTED IN LIGHT OF UNITED STATES V. ILLIES; NOTWITHSTANDING, THE RECORD CONTROVERTS HIS CLAIM. ...................................... 21

A. Standard of Review ............................................................... 22

B. Procedures for Revocation of Supervised Release ................ 24


iii

TABLE OF CONTENTS, cont’d Page

C. Belmontes’s Argument that the Court Plainly Erred by Giving Dominant Weight to an Impermissible Sentencing Factor under § 3553(a)(2)(A) Should be Rejected in Light of United States v. Illies ........................... 27

D. The Record Establishes that the Court Did Not Give

Dominant Weight to § 3553(a)(2)(A) Factors in Determining Belmontes’s Revocation Sentence ................... 31

II. THE DISTRICT COURT’S IMPOSITION OF CONDITION 3

(TO PARTICIPATE IN ALCOHOL-ABUSE TREATMENT) WAS NOT PLAINLY ERRONEOUS, AND ITS IMPOSITION OF CONDITION 6 (ALCOHOL PROHIBITION) WAS NOT AN ABUSE OF DISCRETION. BOTH CONDITIONS REASONABLY RELATE TO THE NATURE AND CHARACTERISTICS OF THE SUPERVISED RELEASE REVOCATION, BELMONTES’S HISTORY AND CHARACTERISTICS, AND HIS NEED FOR CORRECTIVE TREATMENT. ................................................................................ 34

A. Standard of Review ............................................................... 36

B. Provisions Governing Conditions of Supervised Release ..... 37

C. Imposition of Condition 3 Was Not Plain Error; Imposition of Condition 6 Was Not An Abuse of Discretion .............................................................................. 38

III. THE UNITED STATES AGREES THAT CLERICAL

ERRORS EXIST IN THE JUDGMENT AND THAT THE CASE SHOULD BE REMANDED FOR THE LIMITED PURPOSE OF CORRECTION, PURSUANT TO FED. R. CRIM. P. 36. ................................................................................... 43


iv

TABLE OF CONTENTS, cont’d Page CONCLUSION ........................................................................................ 46

CERTIFICATE OF SERVICE ................................................................. 47

CERTIFICATE OF COMPLIANCE ........................................................ 48


v

TABLE OF AUTHORITIES Cases Page(s) Puckett v. United States, 556 U.S. 129 (2009) ........................................ 24

United States v. Alvarez, 880 F.3d 236 (5th Cir. 2018) .................... 36, 37

United States v. Bright, 678 F. App’x 257 (5th Cir. 2017) (unpublished) .................................................................................. 33 United States v. Cortez-Guzman, 606 F. App’x 241 (5th Cir. 2015) (unpublished) .................................................................................. 41 United States v. Courtney, 979 F.2d 45 (5th Cir. 1992) .......................... 26

United States v. Davis, 532 F. App’x 547 (5th Cir. 2013) (unpublished) .................................................................................. 30 United States v. Escobedo-Zapata, 489 F. App’x 766 (5th Cir. 2012) (unpublished) ............................................................................ 40, 43 United States v. Ferguson, 369 F.3d 847 (5th Cir. 2004) ................. 42, 43

United States v. Fuentes, 906 F.3d 322 (5th Cir. 2018), cert. denied, 139 S. Ct. 1363 (2019) .................................... 22, 23, 36 United States v. Gayford, 380 F. App’x 442 (5th Cir. 2010) (unpublished) ............................................................................ 41, 43 United States v. Giddings, 37 F.3d 1091 (5th Cir. 1994) ....................... 28

United States v. Gilchrest, 639 F. App’x 212 (5th Cir. 2016) (unpublished) ............................................................................ 23, 30 United States v. Givens, 746 F. App’x 421 (5th Cir.), cert. denied, No. 18-8700, 2019 WL 1518276 (U.S. May 13, 2019) (unpublished) .................................................................................. 33


vi

TABLE OF AUTHORITIES, cont’d Cases Page(s) United States v. Gonzalez, 250 F.3d 923 (5th Cir. 2001) ........................ 24

United States v. Goodman, 713 F. App’x 290 (5th Cir. 2017) (unpublished) .................................................................................. 25 United States v. Guemrany-Reyes, 733 F. App’x 216 (5th Cir. 2018) (unpublished) ............................................................................ 31, 33 United States v. Heredia-Holguin, 679 F. App’x 306 (5th Cir. 2017) (unpublished) .................................................................................. 41 United States v. Holmes, 473 F. App’x 400 (5th Cir. 2012) (unpublished) ............................................................................ 29, 30 United States v. Horn, 690 F. App’x 278 (5th Cir. 2017) (unpublished) .................................................................................. 30 United States v. Illies, 805 F.3d 607 (5th Cir. 2015) ...................... passim

United States v. Johnson, 588 F.2d 961 (5th Cir. 1979) ................... 45, 46

United States v. Johnson, 619 F.3d 469 (5th Cir. 2010) ......................... 25

United States v. Jordon, 756 F. App’x 472 (5th Cir. 2019) (unpublished) .................................................................................. 42 United States v. Martin, 651 F. App’x 265 (5th Cir. 2016) (unpublished) ............................................................................ 45, 46 United States v. McCall, 419 F. App’x 454 (5th Cir. 2011) (unpublished) .................................................................................. 41 United States v. Mendoza-Velasquez, 847 F.3d 209 (5th Cir. 2017) ...... 36


vii

TABLE OF AUTHORITIES, cont’d Cases Page(s) United States v. Miller, 634 F.3d 841 (5th Cir. 2011) .......... 18, 25, 29, 31

United States v. Powell, 354 F.3d 362 (5th Cir. 2003) ............................ 45

United States v. Rivera, 784 F.3d 1012 (5th Cir. 2015) .......................... 25

United States v. Rodriguez-Barajas, 483 F. App’x 934 (5th Cir. 2012) (unpublished) .................................................................................. 40 United States v. Sanchez, 900 F.3d 678 (5th Cir. 2018) ......................... 23

United States v. Vasquez-Puente, 922 F.3d 700 (5th Cir. 2019) ............. 36

United States v. Warren, 720 F.3d 321 (5th Cir. 2013) .......................... 23

United States v. Weatherton, 567 F.3d 149 (5th Cir. 2009) .................... 37

United States v. Wilson, 460 F. App’x 351 (5th Cir. 2012) (unpublished) ............................................................................ 29, 30 Statutes and Rules

18 U.S.C. § 922(g)(1) .................................................................................. 4

18 U.S.C. § 924(e)(2) .................................................................................. 4

18 U.S.C. § 3231 ........................................................................................ 2

18 U.S.C. § 3553(a) .......................................................................... passim

18 U.S.C. § 3553(a)(1) .................................................................. 24, 31, 37

18 U.S.C. § 3553(a)(2)(A) ................................................................. passim


viii

TABLE OF AUTHORITIES, cont’d Statutes and Rules Page(s) 18 U.S.C. § 3553(a)(2)(B) ............................................................. 24, 31, 37

18 U.S.C. § 3553(a)(2)(C) ............................................................. 24, 31, 37

18 U.S.C. § 3553(a)(2)(D) ............................................................ 24, 31, 37

18 U.S.C. § 3553(a)(4) .............................................................................. 24

18 U.S.C. § 3553(a)(4)(B) ......................................................................... 24

18 U.S.C. § 3553(a)(5) .............................................................................. 24

18 U.S.C. § 3553(a)(6) .............................................................................. 24

18 U.S.C. § 3553(a)(7) .............................................................................. 24

18 U.S.C. § 3582(a)(2)(A) ......................................................................... 28

18 U.S.C. § 3583(d) .......................................................................... passim

18 U.S.C. § 3583(d)(2).............................................................................. 37

18 U.S.C. § 3583(d)(3).............................................................................. 37

18 U.S.C § 3583(e) ........................................................................... passim

18 U.S.C. § 3583(e)(3) ....................................................................... 13, 27

18 U.S.C. § 3583(g) .......................................................................... passim

18 U.S.C. § 3742 ........................................................................................ 2

28 U.S.C. § 1291 ........................................................................................ 2


ix

TABLE OF AUTHORITIES, cont’d Statutes and Rules Page(s) 5th Cir. R. 47.5.4 ..................................................................................... 25

Fed. R. App. P. 4(b)(2) ............................................................................... 2

Fed. R. App. P. 34(a)(2)(C) ......................................................................... i

Fed. R. Crim. P. 36 .......................................................................... passim

United States Sentencing Guidelines

U.S.S.G. § 2K2.1 ........................................................................................ 5

U.S.S.G. § 3E1.1(a) .................................................................................... 5

U.S.S.G. § 5D1.3(d)(4) ........................................................... 20, 37, 41, 43

U.S.S.G. § 7B1.1(a)(1).............................................................................. 27

U.S.S.G. § 7B1.3 ...................................................................................... 27

U.S.S.G. § 7B1.3(a) .................................................................................. 12

U.S.S.G. § 7B1.4 ...................................................................................... 13

U.S.S.G. § 7B1.4 cmt. nn. 2-4 .................................................................. 13

U.S.S.G. § 7B1.4 cmt. n. 5 ....................................................................... 26

U.S.S.G. § 7B1.4(a) ............................................................................ 12, 27

U.S.S.G. § 7B1.4(b) .................................................................................. 27

U.S.S.G. § 7B1.4(b)(1).............................................................................. 13


No. 19-40001 __________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT __________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

ARNOLDO BELMONTES, JR., Defendant-Appellant.

__________________________

On Appeal from the United States District Court For the Southern District of Texas

McAllen Division, Case No. 7:14-CR-745-1 _______________________

BRIEF OF PLAINTIFF-APPELLEE _________________________

The United States of America, Plaintiff-Appellee, by the United

States Attorney for the Southern District of Texas, files this brief in

response to that of Defendant-Appellant Arnoldo Belmontes, Jr.

(Belmontes).


2

STATEMENT OF JURISDICTION

This appeal arises from Belmontes’s federal criminal prosecution,

for which the district court had jurisdiction. See 18 U.S.C. § 3231. He

timely filed a notice of appeal from the judgment of revocation of

supervised release and sentence entered by the district court (Crane, J.)

on January 8, 2019, pursuant to Fed. R. App. P. 4(b)(2). ROA.50, 61.1

This Court’s jurisdiction vests under 28 U.S.C. § 1291 and 18 U.S.C. §

3742.

STATEMENT OF THE ISSUES

1. Whether Belmontes’s argument—that the district court plainly

erred by allegedly giving dominant weight to an impermissible

sentencing factor under 18 U.S.C. § 3553(a)(2)(A) in imposing a

mandatory revocation sentence under 18 U.S.C. § 3583(g)—should be

rejected in light of United States v. Illies, 805 F.3d 607, 609 (5th Cir.

2015).

2. Whether the district court’s special condition of supervised

release requiring Belmontes to participate in an alcohol-abuse treatment

1 The appellate record (“ROA.”) is cited by the page number, which is referenced next to the “19-40001” stamp in the lower right corner of the document.


3

program was plainly erroneous, and whether the court’s special condition

requiring him to refrain from alcohol was an abuse of discretion—when

the record demonstrates that both conditions reasonably relate to the

nature and characteristics of his supervised release violation, his history

and characteristics, and the need for corrective treatment, and are

consistent with the Sentencing Commission’s policy statement.

3. Whether this Court should remand this case for the limited

purpose of correcting clerical errors in the written judgment pursuant to

Fed. R. Crim. P. 36.

STATEMENT OF THE CASE

A. Initial Offense, Indictment and Sentencing

On January 29, 2014, at about 3:00 a.m., officers with the Roma,

Texas Police Department were dispatched to a convenience store in

response to a report that an adult male was armed with a firearm.

ROA.135; PSR ¶ 4.2 Upon their arrival, a store attendant identified a

male entering the bathroom as the person who was armed with a firearm.

2 Information in the October 24, 2014 revised Pre-sentence Investigation Report (“PSR”) is cited by both the appellate record page number (ROA.xxx) and the paragraph number in the PSR.


4

ROA.135; PSR ¶ 4. The officers patted down the male, who they later

identified as Belmontes, and found no weapon. ROA.135; PSR ¶¶ 4-5.

However, when they searched the bathroom they recovered a loaded .45

caliber handgun from the trashcan. ROA.135-36; PSR ¶¶ 5, 7. Officers

checked the registration of Belmontes’s vehicle, parked outside the store,

and discovered that the vehicle was stolen. ROA.135; PSR ¶ 5.

Officers arrested Belmontes and transported him to the police

station at which time they discovered Belmontes had four active arrest

warrants for aggravated assault with a deadly weapon (involving his ex-

wife) which had occurred on January 14, 2014. ROA. 135-36, 142; PSR

¶¶ 5-6, 37. Belmontes admitted that the handgun, manufactured in the

Philippines and operable, belonged to him. He carried it for protection.

ROA.136; PSR ¶¶ 6-7, 9. Further investigation by agents with the

Bureau of Alcohol, Tobacco, Firearms and Explosives revealed that

Belmontes had been convicted in 2014 for driving while intoxicated

(DWI)—third offense, a felony. ROA.136; PSR ¶ 8.

Belmontes was indicted for felon in possession of a firearm, in

violation of 18 U.S.C. §§ 922(g)(1) and 924(e)(2). ROA.10. He


5

subsequently entered a plea of guilty to the charge in the indictment.

ROA.127-28, 135; PSR ¶ 2.

The United States Probation Office (USPO) calculated Belmontes’s

total offense level at 12, applying a base offense level of 14, pursuant to

U.S.S.G. § 2K2.1 and a two-level reduction for acceptance of

responsibility, pursuant to U.S.S.G. § 3E1.1(a). ROA.137; PSR ¶¶ 14, 20-

21. The USPO calculated Belmontes’s criminal history category at IV,

based on several prior convictions for felonies and misdemeanors, and the

fact he was on probation for the 2014 felony DWI conviction when he

committed the instant offense. ROA.139-40; PSR ¶¶ 27, 31.

Specifically, Belmontes had three convictions for DWI in 2002,

2004, and 2011 (ROA.138-40; PSR ¶ ¶ 23, 25, 27); and four convictions

for public intoxication (PI) in 2004, 2008, 2012, and 2013. ROA.138-41;

PSR ¶¶ 24, 26, 28, 36. The PSR reflected he also had several arrests for

PI and possession of marijuana between 2001 and 2009, but no further

information was available regarding those cases. ROA.140-42; PSR


6

¶¶ 33-34, 36, 38-39.3 Additionally, Belmontes had pending charges in

separate cases for unauthorized use of a motor vehicle and felon in

possession of a firearm in Starr County, Texas. ROA.141-42; PSR ¶¶ 36-

37. His four warrants for aggravated assault with a deadly weapon

(involving his ex-wife) remained pending indictment. ROA.142; PSR

¶ 37.

Belmontes reported to the USPO that, at the age of 30, he had a

history of alcohol and substance abuse. ROA.134, 143; PSR ¶ 47. He

began consuming alcoholic beverages, smoking marijuana, and ingesting

cocaine during his mid-teens. He abused alcohol, marijuana, and cocaine

throughout his teens and twenties—as evidenced by his multiple arrests

for DWI. ROA.143; PSR ¶ 47. Belmontes admitted that he smoked

marijuana on a daily basis and ingested cocaine heavily on a weekly basis

until his instant arrest. ROA.144; PSR ¶ 47.

At sentencing on November 6, 2014, the district court adopted the

findings and recommendations in the PSR. ROA.151. With a total offense

3 Although many of Belmontes’s DWI and PI arrests and convictions involved drugs (ROA.138-40; PSR ¶¶ 23-24, 26, 33), others either involved alcohol or the details were unavailable. ROA.138-41; PSR ¶¶ 25, 27-28, 34, 36.


7

level of 12 and criminal history category of IV, Belmontes’s Sentencing

Guidelines imprisonment range was 21 to 27 months. ROA.151. The

court imposed a sentence of 21 months’ imprisonment, to run concurrent

with his state revocation sentence in the felony DWI case, and a two-year

term of supervised release, accompanied by mandatory and standard

conditions of supervision.4 ROA.38-40.

B. Petition for Revocation of Supervised Release

On November 27, 2018, the USPO filed a petition to revoke

Belmontes’s supervised release, alleging that he violated three

mandatory conditions of release:

1. Mandatory Condition: ‘SHALL REPORT TO THE PROBATION OFFICE IN THE DISTRICT TO WHICH THE DEFENDANT IS RELEASED WITHIN 72 HOURS OF RELEASE FROM CUSTODY’

On or about July 23, 2018, Arnoldo Belmontes Jr. violated the Mandatory Condition of supervision by failing to report to the probation office in the federal judicial district where the releasee [was] authorized to reside within 72 hours of release from custody. On or about July 20, 2018, Arnoldo Belmontes Jr. was released from custody of the Texas Department of Criminal Justice; however, he failed to report to the

4 The court also imposed a special condition restricting Belmontes to his place of residence from 12:00 a.m. to 5:00 a.m. each night. ROA.40.


8

U.S. Probation Office as required. On October 3, 2018, [the] USPO . . . established telephone contact with the releasee, who reported that he forgot about his supervised release term with the Southern District of Texas. On October 9, 2018, the releasee reported to the U.S. Probation Office in McAllen, Texas, where he underwent a preliminary intake. On October 12, 2018, the releasee reported as instructed to the Southern District of Texas, Houston Division, where he is currently being supervised.

2. Mandatory Condition: ‘SHALL NOT COMMIT ANOTHER FEDERAL, STATE OR LOCAL CRIME’

A. On or about September 26, 2018, in Houston, Harris County, Texas, within the Southern District of Texas, Arnoldo Belmontes, Jr. violated the Mandatory Condition of supervision by committing the offense of manufacture or delivery of a controlled substance in Penalty Group 1, to wit: cocaine, four grams or more but less than 200 grams, in violation of Texas Health and Safety Code Section 481.112(d), a first degree felony. B. On or about September 26, 2018, in Houston, Harris County, Texas, within the Southern District of Texas, Arnoldo Belmontes Jr. violated the Mandatory Condition of supervision by committing the offense of simple possession, to wit: cocaine, in violation of 21 U.S.C. § 844(a). C. On or about September 26, 2018, in Houston, Harris County, Texas, within the Southern District of Texas, Arnoldo Belmontes, Jr. violated the Mandatory Condition of supervision by committing the offense of possession of marijuana, four ounces or less but more than two ounces, in violation of Texas Health and


9

Safety Code Section 481.121(b)(2), a Class A misdemeanor.

3. Mandatory Condition: ‘SHALL NOT ILLEGALLY POSSESS A CONTROLLED SUBSTANCE’ AND ‘SHALL NOT UNLAWFULLY USE A CONTROLLED SUBSTANCE’

Arnoldo Belmontes Jr. violated the Mandatory Conditions of supervision by illegally possessing and unlawfully using a controlled substance, to wit: marijuana, cocaine and amphetamines on or about October 9, 2018, and marijuana and cocaine, on October 12, 2018, as evidenced by laboratory analyses of the urine specimens collected from the releasee on the aforementioned dates indicating the presence of said controlled substances.

The releasee admitted in written statements entitled ‘Report of Positive Urinalysis’ the illegal use of prohibited controlled substances as indicated by the urinalyses reports. The releasee reported that he was using narcotics due to being unaware of his supervised release term.

ROA.162-63.

Regarding the new law violations, the petition for revocation

referenced the facts summarized in a Houston Police Department (HPD)

offense report. ROA.162-63; GE R1;5 see 115-23. According to the report,

5 “GE” refers to the government’s exhibit followed by the exhibit number.


10

HPD Officer S. M. Gillham stopped a 2007 Chevrolet Silverado truck for

a traffic violation at 10:10 p.m. on September 26, 2018. ROA.118-19.

Officer Gillham noticed that a strong odor of burnt marijuana emitted

from the truck. ROA.118-19. The truck contained two occupants—

Belmontes was the driver and Julio Leza, later identified as Belmontes’s

stepbrother,6 was the front passenger. ROA.118-20. Belmontes had no

identification on him and reported he had just been released from prison.

ROA.119. The truck was filled with clothes and household items,

indicating the occupants had been living out of the truck or a motel.

ROA.118-20.

When Officer Gillham questioned the two men, Belmontes was

extremely talkative, spoke fast, provided evasive answers, and gave

exaggerated hand gestures. ROA.118-19. Leza was withdrawn, nervous,

avoided eye contact, provided evasive answers, and preceded each answer

by repeating Officer Gillham’s question. ROA.118-19. Belmontes told

Officer Gillham that the truck smelled like marijuana because someone

had smoked marijuana in the truck the night before. ROA.119.

6 Belmontes told police that Leza was his step-brother, but later testified at the revocation hearing that Leza was his half-brother. ROA.107.


11

Officer Gillham and other HPD officers subsequently recovered

172.49 grams of powder cocaine and 88.89 grams of marijuana from

inside a Hamilton appliance box in the passenger floorboard of the truck.

ROA.119. They also recovered a “cocaine press,” numerous “cutting

agents” in sealed containers, and items commonly used to make “crack”

cocaine (e.g. whisk, digital scale, and beaker). ROA.119. The truck was

registered to “Rent2Own.” ROA.119. Leza claimed he was making bi-

weekly payments on it. ROA.119-20.

Belmontes and Leza later gave statements. ROA.120. Belmontes

stated he and Leza had been staying in a motel room but checked out

because they ran out of money. ROA.120. Belmontes claimed that the

cocaine found in the vehicle belonged to an unidentified friend who left

the cocaine and cocaine press in his motel room. ROA.120. He took the

narcotics and all of the contraband with him rather than leave it in the

room when checking out. ROA.120. Belmontes admitted he had been

trafficking narcotics since the age of 18 and bragged about his extensive

knowledge on the subject. ROA.120.

Leza stated that he had Belmontes had been moving from motel to

motel after they were kicked out of a family member’s house. ROA.120.


12

Leza reported that Belmontes is a habitual cocaine user and that the

cocaine belonged to him. ROA.120. Belmontes told Leza to hide the

cocaine underneath his balls when Officer Gillham stopped them, but

Leza refused. He placed it on the floorboard or under the seat instead.

ROA.120.

Belmontes was indicted in the 337th District Court of Harris

County, Texas, Criminal Docket Number CR-1606490, for manufacture

or delivery of a controlled substance in Penalty Group 1, namely four

grams or more but less than 200 grams of cocaine. ROA.163. Although no

charges were filed for possession of cocaine or marijuana, the USPO

alleged these offenses as grounds for revocation based on the conduct.

ROA.163. Belmontes bonded out of Harris County jail on October 1, 2018.

ROA.163.

C. Supervised Release Revocation Sentencing Worksheet

The USPO advised the district court that Violations 1, 2B, 2C, and

3 are Grade C violations, and Violation 2A is a Grade A violation. ROA.

181-82 (relying on U.S.S.G. § 7B1.4(a) (Policy Statement)). Revocation is

mandatory for Grade A violations and discretionary for Grade C

violations. ROA.182 (citing U.S.S.G. § 7B1.3(a)). The USPO further


13

advised that revocation and an imprisonment term (not to exceed the

maximum term authorized by 18 U.S.C. § 3583(e)(3)) are mandatory if

Belmontes unlawfully possessed a controlled substance ROA.182-83

(citing 18 U.S.C. § 3583(g)). The USPO noted that the use of a controlled

substance establishes possession for purposes of revocation. ROA.182.

The USPO stated that the Sentencing Guidelines Policy Statement

recommends an imprisonment range of between 24 and 30 months based

on a Grade A violation and criminal history category of IV. ROA.182

(citing U.S.S.G. § 7B1.4, Revocation Table). However, since Belmontes’s

statutorily authorized maximum term of imprisonment is 24 months, the

maximum range becomes 24 months. ROA.182-83 (citing U.S.S.G.

§ 7B1.4(b)(1); 18 U.S.C. § 3583(e)(3)). The USPO found no factors

warranting a departure from the Guidelines. ROA.183 (citing § 7B1.4

cmt. nn. 2-4).

D. Revocation Hearing

Belmontes pled true to Violation 1 (failing to report within 72

hours); and Violation 3 (possessing and using a controlled substance).

ROA.99-100, 102-03. The court accepted his plea and found that he

breached the terms of his supervised release by committing the above


14

violations. ROA.104. Belmontes pled not true to Violations 2A, 2B and

2C (new law violations). ROA.100-02. Based on the evidence in the HPD

offense report (ROA.115-26; GE R1), the court found that Belmontes

committed these violations as alleged in the petition for revocation.

ROA.65, 103-04.

During the revocation proceeding, Belmontes admitted that he

tested positive for drug-use twice. ROA.105. “I was smoking weed and

doing coke, you know. So, I was dirty.” ROA.105. But he told the court he

was trying to get the current state charges off his record. ROA.106. Both

Belmontes and the judge agreed that his situation looked “pretty bad.”

ROA.106. The judge remarked that he had seen stiff sentences from

Harris County courts on drug cases. ROA.106. Despite the seriousness of

the state charges, Belmontes asked the court to let him stay on

supervised release.7 He promised to report every week and attend any

classes or program the court ordered. ROA.106. The judge replied” “I

can’t have you out smoking weed and doing coke.” ROA.106.

7 Although Belmontes used the term “probation,” he was referring to his term of supervised release.


15

The court observed that Belmontes’s state offense involved “a big

chunk of cocaine,” and a scale and whisk. ROA.106-07. The court

questioned why Leza, Belmontes’s half-brother, would accuse him of

possessing drugs if it were not true. ROA.107. Belmontes claimed that

the police tricked and scared Leza. ROA.107. The court further

questioned why Belmontes was staying in a motel in Houston, and

Belmontes replied that his uncle kicked him out of the house. ROA.107.

Defense counsel urged the court to keep Belmontes on supervised

release. ROA.108-09. He argued that Belmontes was amenable to

whatever conditions of supervised release the court deemed necessary.

ROA.108. The court reminded defense counsel that Belmontes was

involved with a large amount of cocaine. ROA.108. Defense counsel

reported that an attorney was trying to work out a deal for probation in

the state case. ROA.108. The judge remarked that he would be very

surprised given Belmontes’s criminal history and the quantity of cocaine

involved. “But, I mean, best of luck. Hopefully, it works out for you.”

ROA.108.

Following this exchange, defense counsel repeated his request to

continue Belmontes on supervised release:


16

[T]hat’s why we were asking the court to possibly consider continuing [Belmontes] on supervision here and allowing him to participate in any program the Court would think is necessary to help him with his issue with drugs. He does admit he does have an issue with drugs. . . . He’s asking the Court for help. If the Court would allow him to do that, he does, as he mentioned here, have a job waiting for him. He has an uncle that owns a bulldozing company and has offered him work, if the Court were to allow him [to] continue supervision. That’s what we’re asking the Court to consider.”

ROA.109. The court agreed that Belmontes had a serious problem with

drugs and advised that it would consider continuing his supervision, but

was not inclined to go that route. ROA.109.

The court next sought the probation officer’s position: “[T]he first

time you met him, he’s dirty, he’s already had all his arrests, his issues.

I mean, what can you really say, at this point?” ROA.109. The probation

officer answered that Belmontes resolved his reporting issue. However,

his conduct underlying the state charge was serious; the probation officer

deferred the appropriate disposition to the court. ROA.109-10. The court

asked the probation officer about special conditions of release should a

term of supervised release be imposed as a part of the revocation

sentence. ROA.111. The probation officer recommended that Belmontes

participate in some form of drug and alcohol treatment based on his self-


17

reported extensive history of substance abuse and criminal history.

ROA.111.

The court discussed aspects of Belmontes’s criminal history

(ROA.111), and announced that it had considered the factors in 18 U.S.C.

§ 3553(a) and believed the sentence to be pronounced satisfied them

(ROA.112). The court sentenced Belmontes to 18 months of

imprisonment (six months below the advisory range in the Guidelines

Policy Statement),8 to be followed by 18 months of supervised release.

ROA.66, 112-13. The court imposed special conditions of supervised

release to include nighttime restriction to his residence from 11:00 p.m.

to 5:00 a.m., and participation in a substance abuse and alcohol abuse

treatment program, either inpatient or outpatient as determined by the

probation officer. ROA.68, 112-13. Neither side objected to the sentence

imposed. ROA.112-14.

The written judgment contained the same relevant special

conditions, and further clarified that Belmontes should not possess any

8 At defense counsel’s request, the court ordered the sentence to run concurrently with any imprisonment term in the pending Harris County case. ROA.66, 110-11. According to the Bureau of Prisons website, Belmontes is scheduled to be released in the instant case on April 23, 2020. See https://www.bop.gov/inmateloc/ (last visited on May 13, 2019).


https://www.bop.gov/inmateloc/

18

controlled substances without a valid prescription, or use or possess

alcohol. ROA.68.

SUMMARY OF ARGUMENT

[Issue One] Belmontes’s argument that the district court plainly

erred by giving dominant weight to impermissible sentencing factors

under 18 U.S.C. § 3553(a)(2)(A) in imposing a mandatory revocation

sentence under 18 U.S.C. § 3583(g) should be rejected in light of United

States v. Illies.9 In Illies, this Court held that it is not clear or obvious

error to consider § 3553(a)(2)(A) factors in a revocation proceeding under

§ 3583(g) because § 3583(g) does not expressly exclude consideration of

such factors, as does 18 U.S.C § 3583(e), which governs discretionary

revocation hearings. Id. Belmontes misplaces reliance on United States

v. Miller,10 which held that it is improper to give dominant weight to

§ 3553(a)(2)(A) factors in determining a revocation sentence under

§ 3583(e). Because this case involves a § 3583(g) revocation, Miller is

inapplicable and Illies is dispositive. Indeed, Illies adopted the reasoning

9 805 F.3d 607, 609 (5th Cir. 2015). 10 634 F.3d 841, 844 (5th Cir. 2011).


19

in cases that distinguished Miller for the same reason. Illies, 805 F.3d at

609. Since Illies, this Court has consistently held that Miller does not

apply to mandatory revocation sentences under § 3583(g). See pp. 21-30,

infra.

Notwithstanding, the record establishes that the district court did

not consider as dominant factors, the need for Belmontes’s revocation

sentence to reflect the seriousness of and to provide just punishment for

his state charge. Rather, the court considered several factors, including

Belmontes’s history and characteristics, the nature and circumstances

underlying his state charge for the manufacture or delivery of cocaine,

the need to provide adequate deterrence, the need to protect the public

from further crimes by Belmontes, and the need for Belmontes to receive

corrective treatment. The court fashioned a below-guidelines revocation

sentence that included imprisonment (as required by § 3583(g)), and an

additional term of supervised release (to address his need for substance-

abuse treatment). See pp. 30-33, infra.

[Issue Two] The district court did not plainly err by ordering

Belmontes to participate in an alcohol-abuse program, and it did not

abuse its wide discretion by ordering him to refrain from using or


20

possessing alcohol. Both of these special conditions of supervised release

reasonably relate to the nature and characteristics of Belmontes’s

supervised release violation, his history and characteristics, and his need

for corrective treatment. They are also consistent with the Sentencing

Commission’s Policy Statement in U.S.S.G. § 5D1.3(d)(4). To be sure,

Belmontes’s violations of supervised release, criminal history, and self-

reported personal history establish that he has abused controlled

substances and alcohol over a period of several years—covering his

teenage and adult life. Indeed, at the revocation hearing, Belmontes

urged the district court to let him stay on supervised release to allow him

to participate in any program the court deemed necessary to address his

significant substance-abuse problem. No error has been shown, plain or

otherwise. See pp. 33-42, infra.

[Issue Three] The United States agrees that clerical errors exist

in the written judgment and that this case should be remanded, pursuant

to Fed. R. Crim. P. 36, for the limited purpose of correcting the judgment

to reflect: (a) that Belmontes admitted guilt to violating mandatory

supervised release conditions 1 and 3; (b) the district court found that he

was in violation of mandatory conditions 2A, 2B, and 2C after his denial


21

of guilt; and (c) the Criminal Docket Number for the Harris County case

in the 337th District Court is “CR-1606490.” See pp. 43-45, infra.

ARGUMENT

I. BELMONTES’S ARGUMENT THAT THE DISTRICT COURT PLAINLY ERRED BY GIVING DOMINANT WEIGHT TO IMPERMISSIBLE SENTENCING FACTORS UNDER 18 U.S.C. § 3553(a)(2)(A) IN IMPOSING A MANDATORY REVOCATION SENTENCE UNDER 18 U.S.C. § 3583(g) SHOULD BE REJECTED IN LIGHT OF UNITED STATES V. ILLIES; NOTWITHSTANDING, THE RECORD CONTROVERTS HIS CLAIM.

Belmontes contends that the district court committed reversible

plain error by considering as a dominant factor the need for the

revocation sentence to reflect the seriousness of and to provide just

punishment for his state charge for the manufacture or delivery of

cocaine. He argues that 18 U.S.C. § 3583(e) specifically excludes the

above factors for purposes of a revocation sentence. He requests that this

Court vacate and remand the case for resentencing. Appellant’s Brief, 18-


22

24. Belmontes’s argument completely disregards United States v. Illies,11

which is dispositive here.12 His argument also ignores the record.

A. Standard of Review

Belmontes concedes that review is limited to plain error because he

failed to object to his revocation sentence below. Appellant’s brief, 14.

Generally, when a defendant preserves his objection for appeal, a

revocation sentence is reviewed under the “plainly unreasonable”

standard. United States v. Fuentes, 906 F.3d 322, 325 (5th Cir. 2018),

cert. denied, 139 S. Ct. 1363 (2019). “To determine whether a sentence is

plainly unreasonable, this court first evaluates whether the district court

committed a significant procedural error, such as failing to consider the

18 U.S.C. § 3553(a) factors, selecting a sentence based on clearly

erroneous facts, or failing adequately to explain the chosen sentence[.]”

Id. (internal quotation marks omitted).

If no procedural error occurred, the court next “considers the

substantive reasonableness of the sentence under an abuse of discretion

11 805 F.3d 607, 609 (5th Cir. 2015). 12 Although Illies is dispositive here, Belmontes fails to mention the case in his brief.


23

standard[.]” Id. A revocation sentence is substantively unreasonable

when the district court failed to “account for a factor that should have

received significant weight, . . . [gave] significant weight to an irrelevant

or improper factor, or . . . [made] a clear error of judgment in balancing

the sentencing factors.” United States v. Warren, 720 F.3d 321, 332 (5th

Cir. 2013) (internal quotation marks omitted). The sentence is subject to

reversal only if the identified error is plainly unreasonable—that is, “the

identified error is obvious under existing law.” United States v. Sanchez,

900 F.3d 678, 682 (5th Cir. 2018) (internal quotation marks omitted).

“Law from the ‘obviousness’ prong of [Fed. R. Crim. P.] 52(b)’s plain error

test informs this latter inquiry, . . . notwithstanding that the error was

in fact preserved.” Id.13

Here, Belmontes must establish that he is entitled to relief under

the rigorous plain error standard. Fuentes, 906 F.3d at 325. First, he

must demonstrate an error. Id. Secondly, he must establish that the

error is clear or obvious—that is, it is not open to reasonable dispute. Id.

13 This Court has treated the type of complaint raised by Belmontes as one of procedure or substance or both. See Illies, 805 F.3d at 609; United States v. Gilchrest, 639 F. App’x 212, 213 (5th Cir. 2016) (unpublished). Regardless, the court’s analysis does not turn on that distinction. See Sanchez, 900 F.3d at 683.


24

Thirdly, he must establish that the error affected his substantial rights.

Id. Lastly, this court has the discretion to correct the error only if it

“‘seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” Id. (quoting Puckett v. United States, 556 U.S. 129, 135

(2009)). His burden of establishing plain error “‘is difficult, as it should

be.’” Id. (quoting Puckett, 556 U.S. at 135).

B. Procedures for Revocation of Supervised Release

Title 18 U.S.C., Section 3583(e) provides that the sentencing court

may revoke a defendant’s supervised release and require him to serve all

or part of the supervised release term, if after considering the factors set

forth in 18 U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4), (a)(5),

(a)(6) and (a)(7),14 it finds by a preponderance of the evidence that the

person violated a condition of supervised release. Id.; see United States v.

14 These factors include: “the nature and circumstances of the offense and the history and characteristics of the defendant” (§ 3553(a)(1)); “the need for the sentence imposed—to afford adequate deterrence to criminal conduct; to protect the public from further crimes of the defendant; and to provide the defendant with needed educational or vocational training, medical care or other correctional treatment in the most effective manner” (§ 3553(a)(2)(B)-(D)); “in the case of a violation of probation or supervised release, the applicable guidelines of policy statements issued by the Sentencing Commission” (§ 3553(a)(4)(B)); and “the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct” (§ 3553(a)(6)).


25

Gonzalez, 250 F.3d 923, 929-30 (5th Cir. 2001). Section 3583(e)(3)

excludes, in relevant part, consideration of the factors in § 3553(a)(2)(A)

(“the need for the sentence imposed—to reflect the seriousness of the

offense, to promote respect for the law, and to provide just punishment

for the offense”). This Court has held that it is improper for a district

court to give dominant weight to a § 3553(a)(2)(A) factor when

determining a revocation sentence under § 3583(e). United States v.

Rivera, 784 F.3d 1012, 1017-18 (5th Cir. 2015); United States v. Miller,

634 F.3d 841, 844 (5th Cir. 2011). However, if the impermissible “factor

was not a ‘dominant factor,’ but rather ‘merely a secondary concern or

additional justification for the sentence’ there is no error.” United States

v. Goodman, 713 F. App’x 290, 291 (5th Cir. 2017) (unpublished) 15

(quoting Rivera, 784 F.3d at 1017).

Separate from § 3583(e)’s discretionary provision, 18 U.S.C.

§ 3583(g) provides for mandatory revocation if the court finds by a

15 Unpublished cases from this Circuit “are not controlling precedent, . . . [but] may be considered persuasive authority.” United States v. Johnson, 619 F.3d 469, 473 n.3 (5th Cir. 2010); 5th Cir. R. 47.5.4.


26

preponderance of the evidence that the defendant possessed a controlled

substance in violation of the condition set forth in 18 U.S.C. § 3583(d).16

In such instance, “the court shall revoke the term of supervised release

and require the defendant to serve a term of imprisonment not to exceed

the maximum term of imprisonment authorized under subsection (e)(3).”

§ 3583(g) (emphasis added); see U.S.S.G. § 7B1.4 cmt. n. 5 (“Upon a

finding that a defendant violated a condition of . . . supervised release by

being in possession of a controlled substance . . . the court is required to

revoke . . . supervised release and impose a sentence that includes a term

of imprisonment.”) (citing § 3583(g)). Here, § 3583(g) applies because the

district court concluded that Belmontes violated his conditions of

supervision by possessing a controlled substance. See ROA.100-04, 182.17

Additionally, the Sentencing Guidelines Policy Statement provides

that the district court shall revoke supervised release upon a finding of a

16 Section 3583(d) states that “the court shall order, as an explicit condition of supervised release, . . . that the defendant not unlawfully possess a controlled substance.” 17 Belmontes does not challenge the sufficiency of the evidence to support the court’s finding that he unlawfully possessed a controlled substance. Indeed, he admitted to the illegal use of narcotics during his supervised release. ROA.103, 105-06, 163. See United States v. Courtney, 979 F.2d 45, 49-50 (5th Cir. 1992) (holding use of a controlled substance establishes possession for purposes of revocation).


27

Grade A violation. U.S.S.G. § 7B1.3 (emphasis added). A controlled

substance offense that is punishable by a term of imprisonment

exceeding one year is a Grade A violation. U.S.S.G. § 7B1.1(a)(1).

Belmontes does not challenge whether his Texas offense for the

manufacture or delivery of cocaine is a Grade A violation. The defendant

must serve a term of imprisonment for a Grade A violation. See

§ 7B1.4(a). The Sentencing Guidelines Revocation Table provides an

advisory imprisonment range of 24-30 months for a defendant who

commits a Grade A violation and has a criminal history category of IV.

U.S.S.G. § 7B1.4(a) (Policy Statement); see ROA.182. However, because

Belmontes’s maximum statutory sentence is 24 months’ imprisonment,

his advisory Guidelines sentence is 24 months. ROA.183; see 18 U.S.C.

§ 3583(e)(3); U.S.S.G. § 7B1.4(b).

C. Belmontes’s Argument that the Court Plainly Erred by Giving Dominant Weight to an Impermissible Sentencing Factor under § 3553(a)(2)(A) Should be Rejected in Light of United States v. Illies

Unlike § 3583(e), revocation of supervised release under § 3583(g)

does not reference consideration of § 3553(a) factors. Nor does it expressly

exclude consideration of the sentencing factors in § 3553(a)(2)(A). Illies,

805 F.3d at 609. Accordingly, this Court has rejected the argument that


28

consideration of § 3553(a)(2)(A) factors in a § 3583(g) revocation

proceeding is clear and obvious error. Id.

In Illies, the appellant argued that the district court plainly erred

because it failed to consider the § 3553(a) factors referenced in § 3583(e),

and instead considered the impermissible factors in § 3553(a)(2)(A), in

imposing his revocation sentence under § 3583(g). Id. This Court found

that “Illies’s reliance on . . . § 3583(e), which concerns discretionary

revocations, [was] misplaced.” Id. It explained that in the case of a

mandatory revocation under § 3583(g), for unlawful possession of a

controlled substance, the district court may consider the § 3553(a) factors

referenced in § 3583(e), “but is not required to do so.” Id. (emphasis

added) (citing United States v. Giddings, 37 F.3d 1091, 1095-97 (5th Cir.

1994)). Moreover, it was not clear or obvious error for the district court to

consider the § 3582(a)(2)(A) factors in imposing a revocation sentence

under § 3583(g). Id.


29

The Court adopted the reasoning in United States v. Holmes18 and

United States v. Wilson,19 wherein the Court rejected Illies’s identical

argument. Id. In both cases, the appellants argued that the district court

plainly erred by considering the factors in § 3553(a)(2)(A) when imposing

a § 3583(g) revocation sentence. They relied on Miller, 634 F.3d at 844,

which held it is improper to give dominant weight to § 3553(a)(2)(A)

factors when determining a revocation sentence under § 3583(e). See

Holmes, 473 F. App’x at 401; Wilson, 460 F. App’x at 252. The Court in

Holmes and Wilson distinguished Miller because it involved a § 3583(e)

revocation not a § 3583(g) revocation, pointing out that Congress

deliberately excluded the § 3553(a)(2)(A) factors from § 3583(e), but not

from § 3583(g). Holmes, 473 F. App’x at 401; Wilson, 460 F. App’x at 352.

The Court in Holmes explained: “Unlike the revocation under § 3583(e)

at issue in Miller, the revocation of Holmes’s term of supervised release

was mandated by . . . § 3583(g). Because § 3583(g) does not expressly

invoke the § 3553(a) factors or the limits imposed by the first clause of

18 473 F. App’x 400, 401 (5th Cir. 2012) (unpublished). 19 460 F. App’x 351, 352 (5th Cir. 2012) (unpublished).


30

§ 3583(e), we find no clear or obvious error under Miller. Holmes, 473 F.

App’x at 401; accord Wilson, 460 F. App’x at 352.

Since Illies, this Court has consistently held that Miller does not

apply to sentences following mandatory revocation under § 3583(g). See

United States v. Horn, 690 F. App’x 278, 279 (5th Cir. 2017)

(unpublished); Gilchrest, 639 F. App’x at 213. Consequently, Belmontes

erroneously relies on Miller to support his claim herein. See Appellant’s

brief, 14-20. That his supervised release was revoked for violations in

addition to the unlawful possession of a controlled substance does not

alter this conclusion. United States v. Davis, 532 F. App’x 547, 550 (5th

Cir. 2013) (unpublished) (district court did not err in considering

§ 3553(a)(2)(A) factors where supervised release was revoked under both

§ 3583(e) and (g)).

In sum, Belmontes has failed to establish a clear or obvious error

that affects his substantial rights or seriously undermines the fairness of

his revocation proceeding. See Horn, 690 F. App’x at 279 (court’s reliance

on § 3553(a)(2)(A) factors in imposing a § 3583(g) revocation sentence

was not clear or obvious error affecting Horn’s substantial rights.).


31

D. The Record Establishes that the Court Did Not Give Dominant Weight to § 3553(a)(2)(A) Factors in Determining Belmontes’s Revocation Sentence Notwithstanding, the record controverts Belmontes’s claim that the

court placed dominant weight on the need for his sentence to reflect the

seriousness of and to provide just punishment for his state charge.

The discussion during the revocation hearing regarding

Belmontes’s state cocaine case related to the nature and circumstances

of the underlying conduct, Belmontes’s history and characteristics, the

need to protect the public from further crimes by Belmontes, the need to

afford adequate deterrence, and the need for corrective treatment.

ROA.106-12; see § 3553(a)(1), (a)(2)(B)-(D). To be sure, consideration of

the nature of Belmontes’s state offense was relevant to measure the

extent to which he violated the terms of his supervised release and

breached the court’s trust. United States v. Guemrany-Reyes, 733 F.

App’x 216, 217 (5th Cir. 2018) (unpublished) (citing Miller, 634 F.3d at

843).

Relevant to the above factors, the record demonstrates that

Belmontes committed a new crime shortly after his supervised release

began. ROA.109; see ROA.162. As the district court noted, he lived in a


32

hotel (ROA.107), and was found in possession of large amount of cocaine

and items used to make crack cocaine. ROA.106-07; see ROA.119; GE R1.

Even after his state arrest, Belmontes tested positive for the use of

controlled substances on two occasions. ROA.109, 162-63. Based on this

evidence, as well as Belmontes’s criminal history and personal

characteristics, the court found that Belmontes had a “significant”

substance abuse problem. ROA.109-12.

Moreover, the court discussed the seriousness of Belmontes’s new

criminal conduct in response to Belmontes’s request to remain on

supervision (ROA.106, 108-09), and his assertion that he hoped to get the

state charge off his record or work out a deal for probation. ROA.106, 108.

Indeed, in response to Belmontes’s argument to remain on supervision,

the court stated that it could not allow Belmontes to be “out smoking

weed and doing coke” (ROA.106), indicating that the court considered the

need for the revocation sentence to protect the public from further crimes

by Belmontes, and to afford adequate deterrence.

During the revocation hearing, the court also discussed Belmontes’s

other supervised release violations (ROA.105-06, 109-11), and his

criminal history (ROA.108, 111). The court stated that it had considered


33

the § 3553(a) factors and found that Belmontes’s revocation sentence

satisfied these factors. ROA.112.

Notably, the court never stated that it based its revocation sentence

on the need to reflect the seriousness of and to provide just punishment

for the state offense under § 3553(a)(2)(A). See United States v. Givens,

746 F. App’x 421, 422 (5th Cir. 2019), cert. denied, No. 18-8700, 2019 WL

1518276 (U.S. May 13, 2019) (unpublished) (rejecting complaint that

§ 3553(a)(2)(A) factors were given dominant weight when the district

court never expressly referenced them); Guemrany-Reyes, 733 F. App’x at

217 (same); United States v. Bright, 678 F. App’x 257 (5th Cir. 2017)

(unpublished) (noting the district court never referenced any prohibited

factor under § 3553(a)(2)(A), but focused on sanctioning the nature and

circumstances of Bright’s failure to comply with the terms of his

supervised release).

In sum, the need to reflect the seriousness of and to provide just

punishment for the state offense was clearly not a dominant factor in

determining Belmontes’s revocation sentence. Indeed, his term of

imprisonment was six months below the advisory Guidelines range. The

record reflects the court carefully fashioned a revocation sentence that


34

included imprisonment (as required by § 3583(g)), and an additional term

of supervised release (to address Belmontes’s need for substance-abuse

treatment). ROA.66, 112-13. No error has been shown, plain or otherwise.

II. THE DISTRICT COURT’S IMPOSITION OF CONDITION 3 (TO PARTICIPATE IN ALCOHOL-ABUSE TREATMENT) WAS NOT PLAINLY ERRONEOUS, AND ITS IMPOSITION OF CONDITION 6 (ALCOHOL PROHIBITION) WAS NOT AN ABUSE OF DISCRETION. BOTH CONDITIONS REASONABLY RELATE TO THE NATURE AND CHARACTERISTICS OF THE SUPERVISED RELEASE VIOLAITON, BELMONTES’S HISTORY AND CHARACTERISTICS, AND HIS NEED FOR CORRECTIVE TREATMENT.

Belmontes contends that the district court erroneously imposed

alcohol-abuse treatment and alcohol prohibition as special conditions of

supervised release because the record lacks sufficient evidentiary

support to impose them. He requests this Court to vacate the judgment

and remand to the district court for entry of an amended judgment

without these conditions. Appellant’s brief, 26-34. As shown below, the

record amply supports the district court’s assessment that Belmontes

should receive alcohol-abuse treatment and refrain from possessing or

using alcohol as conditions of his supervised release.


35

At sentencing, the district court ordered, in relevant part, that

Belmontes participate in a substance-abuse and alcohol-abuse treatment

program, either inpatient or outpatient as determined by the probation

officer. ROA.68, 112-13.20 Neither side objected to the sentence imposed.

ROA.112-14. The written judgment repeated the same special conditions,

and further clarified that Belmontes should not possess any controlled

substances without a valid prescription, or use or possess alcohol.

ROA.68.

Specifically, Belmontes challenges Conditions 3 and 6 in the

Judgment:

Condition 3: You must participate in an inpatient or outpatient alcohol-abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise your participation in the program, including the provider, location, modality, duration and intensity. You must pay the cost of the program if financially able. Condition 6: You may not use or possess alcohol.

20 Belmontes suggests that the record may be unclear whether the court intended to order alcohol-abuse treatment. Appellant’s brief, 31-32. There is no ambiguity on this point. At sentencing, the probation officer recommended both alcohol-abuse and substance-abuse treatment as a condition of supervised release based on Belmontes’s self-reported extensive history of substance abuse and criminal history. ROA.111. The probation officer specifically asked if the court intended to order both conditions, and the court confirmed that it did. ROA.111,113. The court’s intent is further evidenced by the written judgment incorporating the condition to participate in alcohol-abuse treatment. ROA.68.


36

A. Standard of Review

Belmontes had the opportunity to object to Condition 3 when the

district court orally pronounced it at sentencing but failed to do so. See

ROA.113. Therefore, he concedes that review of Special Condition 3 is for

plain error only. Appellant’s brief, 26-27; see United States v. Mendoza-

Velasquez, 847 F.3d 209, 212 (5th Cir. 2017). He must show there is an

error, that is clear or obvious, that affects his substantial rights, and

“that seriously affects the fairness, integrity, or public reputation of

judicial proceedings.” Fuentes, 906 F.3d at 325 (internal quotation marks

omitted).

However, review of Condition 6 (alcohol prohibition) is for abuse of

discretion because the district court did not orally pronounce the

condition at sentencing, and Belmontes had no meaningful opportunity

to object. United States v. Vasquez-Puente, 922 F.3d 700, 703 (5th Cir.

2019). District courts traditionally have broad discretion in imposing

special conditions of supervised release. United States v. Alvarez, 880

F.3d 236, 239 (5th Cir. 2018).


37

B. Provisions Governing Conditions of Supervised Release

Pursuant to 18 U.S.C. § 3583(d), conditions of supervised release

should be “‘reasonably related’ to one of four factors in 18 U.S.C.

§ 3553(a): “(1) the nature and characteristics of the offense and the

history and characteristics of the defendant, (2) the deterrence of

criminal conduct, (3) the protection of the public from further crimes of

the defendant, and (4) the provision of needed educational or vocational

training, medical care, or other correctional treatment to the defendant.”

United States v. Weatherton, 567 F.3d 149, 153 (5th Cir. 2009) (citing 18

U.S.C. § 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D)). The condition cannot

impose a greater deprivation of liberty than is reasonably necessary to

advance the last three statutory goals, and must be “‘consistent with any

pertinent policy statements issued by the Sentencing Commission.’”

Alvarez, 880 F.3d at 240 (quoting 18 U.S.C. § 3583(d)(2), (d)(3)).

Pursuant to U.S.S.G. § 5D1.3(d)(4), “[i]f the court has reason to

believe that the defendant is an abuser of narcotics, other controlled

substances or alcohol”—the court may impose a condition “requiring the

defendant to participate in a program approved by the United States

Probation Office for substance abuse, which . . . may include testing to


38

determine whether the defendant has reverted to the use of drugs or

alcohol;” and “a condition specifying that the defendant shall not use or

possess alcohol.”

C. Imposition of Condition 3 Was Not Plain Error; Imposition of Condition 6 Was Not An Abuse of Discretion

Belmontes argues that the record does not demonstrate that the

alcohol-related special conditions are reasonably related to one of the four

sentencing factors in § 3583(d). Belmontes’s argument disregards the

solid evidence. Both alcohol-related conditions reasonably relate to the

nature and characteristics of the supervised release violations,

Belmontes’s history and characteristics, and the need to advance his

correctional needs.

To be sure, Belmontes’s violations (failure to report, manufacture

or delivery of cocaine, possession of marijuana, and testing positive for

the use of amphetamines, cocaine and marijuana) relate to an extensive

and significant substance-abuse problem. So does his criminal history.

As the probation officer stated at sentencing, Belmontes has a “self-

reported extensive history of substance abuse.” ROA.111.

The original PSR reflects that Belmontes reported abusing alcohol,

marijuana and cocaine since his mid-teens. ROA.143; PSR ¶ 47. He


39

admitted he smoked marijuana on a daily basis and ingested cocaine

heavily on a weekly basis until his 2014 arrest for felon in possession of

a firearm in the instant case. ROA.144; PSR ¶ 47. His persistent and

continual abuse of alcohol and drugs spanned 12 years as evidenced by

his multiple convictions and arrests for DWI and PI involving drugs,

alcohol, or an unidentified intoxicant ROA.138-43; PSR ¶¶ 23-28, 33-34,

36, 38-39, 47. His pattern continued after his release from the custody of

Texas Department of Criminal Justice in July 2018, when his term of

supervised release began. ROA.162-63. In September 2018, he was

arrested for the manufacture or delivery of cocaine and possession of

marijuana, and in October 2018, he tested positive twice for the use of

cocaine and marijuana and he tested positive once for the use of

amphetamines. ROA.162-63; see ROA.100-06.

At sentencing, Belmontes admitted to violating the conditions of his

release by testing positive for cocaine and marijuana. ROA.105, 163. Both

Belmontes and his counsel urged the court to allow Belmontes to remain

on supervised release so he could participate in programs addressing his

substance-abuse problem. ROA.103, 105-06, 108-09. Belmontes promised

to complete any program the court ordered. ROA.106, 109. Based on the


40

nature and characteristics of the supervised release violations and

Belmontes’s history and characteristics, the court found that Belmontes

had a significant substance-abuse problem (ROA.109). The probation

officer recommended that he participate in a program for both substance-

abuse and alcohol-abuse, and the court agreed. ROA.68, 111-12.

Based on this record, the court did not plainly err by requiring

Belmontes to participate in an alcohol-abuse treatment program in

Condition 3; nor did it abuse its discretion by requiring him to abstain

from alcohol in Condition 6. The condition to participate in an alcohol-

abuse treatment program reasonably relates to Belmontes’s continual

substance-abuse problem, which includes alcohol-abuse. The condition

to abstain from the use of alcohol naturally flows from that condition. See

United States v. Escobedo-Zapata, 489 F. App’x 766, 766-67 (5th Cir.

2012) (unpublished) (alcohol abstinence in written condition naturally

flowed from oral condition to participate in drug and alcohol treatment

program); United States v. Rodriguez-Barajas, 483 F. App’x 934, 935 (5th

Cir. 2012) (unpublished) (written special condition to “abstain from the

use of alcohol and/or all other intoxicants during and after completion of

treatment” was implicit in oral condition that defendant receive


41

treatment for “narcotic, drug, or alcohol dependency”). Additionally, both

conditions are consistent with the Sentencing Commission’s Policy

Statement in U.S.S.G. § 5D1.3(d)(4).

This Court has consistently upheld these type of conditions for

addressing substance-abuse, irrespective whether the record lacks

specific evidence of alcohol-abuse. See United States v. Heredia-Holguin,

679 F. App’x 306, 312 (5th Cir. 2017) (unpublished) (special conditions

requiring defendant to abstain from alcohol and other intoxicants was

not clear or obvious error despite lack of evidence of alcohol-abuse);

United States v. Cortez-Guzman, 606 F. App’x 241, 243 (5th Cir. 2015)

(unpublished) (district court did not commit error, plain or otherwise, by

ordering Cortez to abstain from alcohol as a condition of supervised

release where he had a record of illegal substance abuse); United States

v. McCall, 419 F. App’x 454, 458-59 (5th Cir. 2011) (unpublished) (court

did not commit clear or obvious error by prohibiting McCall from

consuming alcohol, “a substance that . . . presents a danger of

addiction[,]” when the court had reason to believe McCall currently

abused marijuana—notwithstanding that the record lacked evidence of

McCall abusing alcohol); United States v. Gayford, 380 F. App’x 442, 44


42

(5th Cir. 2010) (unpublished) (court did not commit clear or obvious error

by ordering abstention from alcohol as a special condition; the court could

restrict Gayford’s access to other substances, including alcohol and legal

drugs presenting a danger to addiction because it had reason to believe

Gayford abused controlled substances). See generally United States v.

Ferguson, 369 F.3d 847, (5th Cir. 2004) (court did not abuse its discretion

by imposing a special condition precluding the use of cough syrups with

codeine, NyQuil, or sleeping potions with drugs or alcohol because

Ferguson had a history for drug abuse and these medications contained

chemicals that could be addictive).

Belmontes’s reliance on United States v. Jordon21 is misplaced. In

that case, the substance-abuse treatment requirement and alcohol

prohibition were not reasonably related to one of the four § 3583(d)

factors because there was no reason to believe Jordon abused drugs or

alcohol. Such is not the case here. Belmontes has admitted that he needs

treatment for substance-abuse and has requested the district court to

help him regarding this problem. See Appellant’s brief, 33; ROA.106, 109.

21 756 F. App’x 472, 473 (5th Cir. 2019) (unpublished).


43

Contrary to Belmontes’s argument, the district court’s alcohol-

related conditions are not overly burdensome; rather, they overlap with

and naturally flow from the substance-abuse conditions. See Escobedo-

Zapata, 489 F. App’x at 766-67; Gayford, 380 F. App’x at 444; Ferguson,

369 F.3d at 853; see also U.S.S.G. § 5D1.3(d)(4). Thus, Belmontes has

failed to establish that his substantial rights are affected by the court’s

imposition of Condition 3 (alcohol-abuse treatment), or that such

condition seriously undermines the fairness of his sentence. He also has

failed to show that imposition of Condition 6 (refrain from alcohol) was

an abuse of the court’s wide discretion.

III. THE UNITED STATES AGREES THAT CLERICAL ERRORS EXIST IN THE JUDGMENT AND THAT THE CASE SHOULD BE REMANDED FOR THE LIMITED PURPOSE OF CORRECTION, PURSUANT TO FED. R. CRIM. P. 36.

Belmontes requests that this Court remand for entry of a corrected

judgment, pursuant to Fed. R. Crim. P. 36, to correct two clerical errors

in the written judgment. He argues that the judgment erroneously states

that he pled true to all supervised release violations, and contains an

incorrect criminal docket number for his Harris County case. Appellant’s

brief, 35-36.


44

Specifically, the judgment states:

THE DEFENDANT: [A]dmitted guilt to violation of condition(s) Mandatory of the term of supervision. [W]as found in violation of condition(s) __________ after denial of guilt.

ROA.64. The box next to the first entry is checked, and the box next to

the second entry is not. The judgment further states that Belmontes was

adjudicated guilty of violating Conditions 1, 2A-2C, and 3, and describes

the nature of each violation. ROA. 64-65. Belmontes complains that the

judgment does not reflect that he admitted guilt to violating Conditions

1 and 3, and was found in violation of Conditions 2A, 2 B, and 2C after

denial of guilt.

Additionally, on page 3 of the judgment it states:

The Court further orders that the imprisonment term imposed in the instant offense run concurrently with the imprisonment term that may be imposed in Criminal Docket Number CR-16064090, 337th District Court, Harris County, Houston, Texas.

ROA.66. The petition for revocation lists the Harris County Criminal

Docket Number as “CR-1606490.” ROA.163. Belmontes complains that

the docket number in the judgment should reflect the same docket

number that is in the petition.


45

Federal Rule of Criminal Procedure 36 provides: “After giving any

notice it considers appropriate, the court may at any time correct a

clerical error in a judgment, order, or other part of the record, or correct

an error in the record arising from oversight or omission.” Consistent

with this authority, this Court has routinely reviewed for the first time

on appeal clerical errors in the written judgment, and has remanded

criminal appeals for the limited purpose of correcting clerical errors.

United States v. Martin, 651 F. App’x 265, 267 (5th Cir. 2016)

(unpublished) (“this court has remanded criminal appeals with directions

to the district court to make minor corrections in the judgment, such as

fixing typos. . .”) (citing cases); United States v. Powell, 354 F.3d 362, 371-

72 (5th Cir. 2003); United States v. Johnson, 588 F.2d 961, 964 (5th Cir.

1979).

The United States agrees clerical errors exist in the written

judgment, and that the case should be remanded, pursuant to Rule 36,

for the limited purpose of correcting the clerical error in the written

judgment to reflect that Belmontes admitted guilt to violating mandatory

Conditions 1 and 3; the court found that he was in violation of mandatory


46

Conditions 2A, 2B, and 2C after his denial of guilt; and the Criminal

Docket Number for the Harris County case is CR-1606490.22

CONCLUSION

For the above reasons, this Court should affirm the revocation

sentence and special conditions of supervised release. This Court should

remand the case for the limited purpose of correcting the clerical errors

in the judgment, pursuant to Fed. R. Crim. P. 36.

Respectfully submitted, RYAN K. PATRICK United States Attorney

CARMEN CASTILLO MITCHELL Chief, Appellate Division

s/ Katherine L. Haden KATHERINE L. HADEN Assistant United States Attorney Attorneys for Appellee 1000 Louisiana, Ste 2300 Houston, Texas, 77002

(713) 567-9102

22 The proper relief is remand for the limited purpose to correct the clerical error, not to vacate the judgment, as Belmontes asserts (Appellant’s brief, 36). See Martin, 651 F. App’x at 268; Johnson, 588 F.2d at 964.


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CERTIFICATE OF SERVICE

I, Katherine L. Haden, Assistant United States Attorney, hereby

certify that on May 28, 2019, an electronic copy of the Appellee’s Brief

was served by notice of electronic filing via this Court’s ECF system upon

opposing counsel, Assistant Federal Public Defender Kathryn Shephard.

Upon notification that the electronically-filed brief has been

accepted as sufficient, and upon the Clerk’s request, seven paper copies

of this brief will be placed in the United States Mail, postage prepaid,

addressed to the Clerk. See 5th Cir. R. 25.2.1; 5th Cir. R. 31.1; 5th Cir.

ecf filing standard E(1).

s/Katherine L. Haden KATHERINE L. HADEN Assistant United States Attorney


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CERTIFICATE OF COMPLIANCE

1. This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because it contains 8,733 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(f).

2. This brief complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6) because it has been prepared in a proportionally spaced typeface using Microsoft Word in Century Schoolbook, 14 point font for text and 12 point font for footnotes.

3. This brief complies with the privacy redaction requirement of

5TH CIR. R. 25.2.13 because it has been redacted of any personal data identifiers.

4. This brief complies with the electronic submission of 5TH CIR.

R.25.2.1, because it is an exact copy of the paper document. 5. This brief is free of viruses because it has been scanned for

viruses with the most recent version of McAfee scanning program.

s/ Katherine L. Haden KATHERINE L. HADEN Assistant United States Attorney Date: May 28, 2019


Documents

United States Court of Appeals - Houston, Texas 19-40001 Appellee...No. 19-40001 USA v. Arnoldo Belmontes, Jr. USDC No. 7:14-CR-745-1 Dear Ms. Haden, You must submit the 7 paper copies