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Appeal from the United States District Court. for the District of New Mexico. (D.C. No. 2:14-CR-03130-JBM-1).
Andre Poissant, Assistant Federal Public Defender, Office of the Federal Public Defender, Las Cruces, New Mexico, for Defendant-Appellant.
David N. Williams, Assistant United States Attorney (Damon P. Martinez, United States Attorney and Laura Fashing, Assistant United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
Before KELLY, BACHARACH, and MORITZ, Circuit Judges.
BACHARACH, Circuit Judge.
Mr. Jesus Manuel Muñoz was charged with possession with intent to distribute marijuana. He pleaded guilty and was sentenced to time served or thirteen days, whichever was less, and two years of supervised release. The term of the supervised release included twelve " standard" conditions of supervised release and two " special" conditions. On appeal, Mr. Muñoz raises substantive and procedural challenges to twelve of the fourteen conditions. Rejecting these challenges, we affirm.
I. Substantive Challenges to the Conditions
Mr. Muñoz raises substantive challenges to each of the twelve conditions in dispute. Some of these challenges were raised in district court, but some are new. We review the new arguments under the plain-error standard and the previously asserted arguments under the abuse-of-discretion standard. Ultimately, we reject each challenge.
A. Mr. Muñoz's new challenges to seven of the supervised release conditions fail under the plain-error standard.
On appeal, Mr. Muñoz challenges seven conditions at least in part on grounds not presented in district court. For these challenges, we apply the plain-error standard. United States v. Walser, 275 F.3d 981, 987 (10th Cir. 2001). Under the plain-error standard, Mr. Muñoz must show that (1) the district court erred, (2) the error was plain, (3) the error affected substantial rights, and (4) the error seriously affected the fairness, integrity, or public reputation of judicial proceedings. United States v. Harris, 695 F.3d 1125, 1130 (10th Cir. 2012). An error is " plain" if it is " clear or obvious." Morales-Fernandez v. INS, 418 F.3d 1116, 1124 (10th Cir. 2005). In applying this standard, we reject each of Mr. Muñoz's new arguments.
" 1. [T]he defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons."
Mr. Muñoz argues that this condition is impermissibly vague because it does not define " [t]he terms 'regularly' and 'other acceptable reasons.'"  Appellant's Opening Br. at 24. Because Mr. Muñoz did not
raise this objection in district court, we apply the plain-error standard.
We need not decide whether the district court erred because any possible error would not have been plain. The condition is identical to one of the standard conditions recommended in the sentencing guidelines for supervised release. See U.S. Sentencing Guidelines Manual § 5D1.3(c)(5) (2014). In light of this recommendation, district courts impose this condition with virtual uniformity. See United States v. Truscello, 168 F.3d 61, 63-64 (2d Cir. 1999). Though this condition has been imposed countless times, we have never addressed a vagueness challenge to the supervised release term " regularly" or " other acceptable reasons." In light of the lack of precedent invalidating this condition, we conclude that the district court did not commit an obvious error (if any). See United States v. Turrietta, 696 F.3d 972, 981 (10th Cir. 2012) ( " Since a district court cannot be faulted for failing to act on its own motion where the law is unsettled, a matter of first impression will generally preclude a finding of plain error." ). As a result, this challenge fails under the plain-error standard.
" 2. [T]he defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician," and " [t]he defendant must refrain from the use and possession of alcohol and other forms of intoxicants."
In district court, Mr. Muñoz objected to these two conditions on the ground that they did not allow for religious and other legal uses of alcohol. On appeal, Mr. Muñoz does not pursue this objection. Instead, he makes three new arguments:
1. The two conditions are inconsistent.
2. The two conditions are vague.
3. The condition involving controlled substances is superfluous.
Because these arguments are new, we apply the plain-error standard. Under this standard, Mr. Muñoz's arguments fail as a matter of law.
a. We reject Mr. Muñoz's argument that the two conditions are inconsistent.
Mr. Muñoz notes that the first condition requires him to avoid " excessive alcohol use," while the second prohibits consumption of any alcohol. As Mr. Muñoz points out, these requirements are inconsistent. But the district court noted the inconsistency and orally explained that the prohibition on alcohol consumption took precedence. See R. vol. III, at 23-24.
The oral condition controls over the written. United States v. Villano, 816 F.2d 1448, 1450-51 (10th Cir. 1987) (en banc). Thus, the inconsistency between the written and oral conditions did not affect Mr. Muñoz's substantial rights. See United States v. Harris, 695 F.3d 1125, 1130 (10th Cir. 2012) (explaining that an error is plain only if it affects substantial rights). Because the inconsistency did not affect Mr. Muñoz's substantial rights, we reject this challenge under the plain-error standard.
b. We reject Mr. Muñoz's argument that the two conditions are vague based on the failure to define key terms.
Mr. Muñoz complains about the vagueness of three terms:
1. " excessive use"
2. " intoxicants"
3. " alcohol"
Use of these terms did not constitute plain error.
As noted above, the written condition prohibits excessive use of alcohol. Mr. Muñoz complains that the modifier " excessive" is vague because of uncertainty about how much alcohol is too much. See United States v. Kappes, 782 F.3d 828, 849 (7th Cir. 2015) (" The condition that the defendant 'refrain from excessive use of alcohol,' is vague because 'excessive use' is not defined." ). But the district court explained that Mr. Muñoz could not drink any alcohol. R. vol. III, at 23-24. Thus, any vagueness in the word " excessive" would not have affected Mr. Muñoz's substantial rights.
Mr. Muñoz also complains that the words " alcohol" and " intoxicants" are vague because they could include over-the-counter medications, vanilla extract, rubbing alcohol, coffee, cigarettes, sugar, and chocolate. Two courts have expressed concern over similar terms. For example, the Seventh Circuit has criticized the term " mood altering substance" because it could include coffee, cigarettes, sugar, and chocolate. United States v. Siegel, 753 F.3d 705, 713 (7th Cir. 2014); see also United States v. Downs, 784 F.3d 1180, 1181 (7th Cir. 2015) (criticizing the phrase " for the purpose of intoxication" because it is unclear whether the phrase is limited to alcoholic beverages or includes other substances). Similarly, the Ninth Circuit balked at a condition prohibiting consumption of substances intended to mimic the effects of a controlled substance, noting that this condition could include chocolate or coffee. United States v. Aquino, 794 F.3d 1033, 1037 (9th Cir. 2015). But no federal appeals court has invalidated a supervised release condition prohibiting the consumption of alcohol or intoxicants.
In our view, the district court did not err, for we use common sense to guide our interpretation of supervised release conditions. See United States v. Mike, 632 F.3d 686, 701 (10th Cir. 2011) (opting for a " commonsense" interpretation of release conditions over an interpretation that is " overly technical" ). With the gloss of common sense, the condition was not too vague. As a ...