United States v. Varela-Rivera

Case: 23-50298 Document: 90-1 Page: 1 Date Filed: 05/13/2024

United States Court of Appeals for the Fifth Circuit

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United States Court of Appeals

Fifth Circuit

No. 23-50298

____________ FILED

May 13, 2024 United States of America, Lyle W. Cayce

Clerk Plaintiff—Appellee, versus

Adis Veronica Varela-Rivera,

Defendant—Appellant. ______________________________

Appeal from the United States District Court for the Western District of Texas USDC No. 2:22-CR-833-2

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Before Jones, Clement, and Wilson, Circuit Judges.

Per Curiam: *

Defendant Adis Veronica Varela-Rivera appeals from her sentence, which includes a special condition of supervised release requiring her to abstain from alcohol and other intoxicants. Varela-Rivera argues the district court erred in imposing this special condition because she has no history of alcohol abuse, and the offense for which she was convicted is unrelated to Case: 23-50298 Document: 90-1 Page: 2 Date Filed: 05/13/2024

No. 23-50298 alcohol consumption. We agree and, therefore, we REVERSE AND REMAND WITH INSTRUCTIONS.

I. BACKGROUND

Varela-Rivera is a lawful permanent resident of this country from Honduras. On September 12, 2022, she pled guilty to conspiring to transport illegal aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and (B)(i).

In the presentence investigation report (“PSR”), the probation officer calculated Varela-Rivera’s total offense level as thirteen and her criminal history category as I, resulting in a guidelines imprisonment range of twelve to eighteen months. In the event that Varela-Rivera was not deported following her release from prison, the probation officer recommended including a special condition of supervised release requiring Varela-Rivera to abstain from alcohol and other intoxicants. The probation officer acknowledged, however, that Varela-Rivera “reported no history of alcohol abuse or illicit drug use.”

The parties did not object to the PSR, and the district court adopted it without change. The district court sentenced Varela-Rivera to eighteen months of imprisonment and three years of supervised release. Notably, the district court imposed the recommended special condition of supervised release requiring Varela-Rivera to “abstain from the use of alcohol and any and all intoxicants.” Varela-Rivera appeals from that sentence.

II. DISCUSSION

On appeal, Varela-Rivera argues that the district court plainly erred in imposing a special condition prohibiting her from drinking alcohol because there is no basis in the record for such a condition. Varela-Rivera did not Case: 23-50298 Document: 90-1 Page: 3 Date Filed: 05/13/2024

No. 23-50298 object to this special condition in the district court. Therefore, her challenge is subject to plain error review. 1

According to the PSR, Varela-Rivera “reported no history of alcohol abuse or illicit drug use.” There is also no evidence that alcohol played a role in the commission of Varela-Rivera’s crime. 2 Faced with similar circumstances, the Ninth Circuit concluded “[i]t was plain error . . . for the district court to require [the defendant] to abstain from using all alcohol because there was no evidence in the record to suggest that he abused alcohol or that alcohol played a role in the commission of his crime.” United States v. Yuvavanich, 64 F. App’x 49, 51 (9th Cir. 2003). To remedy that error, the Ninth Circuit “remand[ed] with directions to the district court to modify this condition of [the defendant’s] supervised release to require [the defendant] only to refrain from excessive use of alcohol.” Id. (emphasis in original).

Likewise, we conclude the district court plainly erred in imposing a special condition barring Varela-Rivera from drinking alcohol absent any basis in the record for such a condition. Accordingly, we adopt the approach of our sister circuit and remand with directions to the district court to modify this condition to require Varela-Rivera only to refrain from excessive use of alcohol.

REVERSED AND REMANDED WITH INSTRUCTIONS. 3