* Pursuant to 5th Cir. R. 47.5, the court has determ ined th at this opinio n should not be published and is no t precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. United States Court of Appeals

Fifth Circuit 

## FILED March 8, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________ No. 04-20631 Summary Calendar

__________________________ UNITED STATES OF AMERICA, Pl aint iff- Appellee,
versus GUADALUPE SEGURA-LARA, Defendant-Appellant.

___________________________________________________ Appeal from the United States District Court fo r the Southern District of Texas (4:04-CR-45-1)

___________________________________________________ Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges. PER CURIAM: * Guadalupe Segura-Lara pleaded guilt y to illegal reentry aft er having been convict ed of an aggravated felo ny, in vio lat io n of 8 U.S.C. § 1326(a) and (b)(2). The district court sentenced SeguraLara to thirty mo nt hs imprisonment and th ree years of supervised release. At the sentencing hearing, the district court orally pronounced th at if Segura-Lara was deported, the release would be wit hout supervision and that if he was not deported, the conditions would be “no weapons, no addictive or stimulat ive or depressive drugs wit hout a prescription from a non-relative physician.” In its written1 Segura-Lara does not challenge the alcohol-related condition; he has a prior DWI conviction.

Segura-Lara raises two other issues on appeal. He challenges the constitutionality of § 1326 but concedes that his argument is fo reclosed by Almendarez-Torres v. United States , 523 U.S. 224 (1998); he raises the issue in order to preserve it for f urther review. He also claims his sentence should be vacated since h e was sentenced under a mandatory guidelines system, found unconstitutional in United States v. Booker , 543 U.S. 220 (2005). Segura-Lara properly objected in the district court. However, the district court procl aimed mo re than once at sentencing that it would impo se the same sentence even if there were no guidelines syst em. As a result, the error was harmless beyo nd a reasonable doubt. S ee United States v. Saldana , 427 F.3d 298, 314–15 (5th Cir. 2005).
2 This standard requires th at we find (1) an error (2) th at is plain and (3) affects a substantial right. Miller , 406 F.3d at 327. Even if this court finds plain error, this court will not exercise discretion to correct the forfeited error unless it seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id . at 328. 2 judgment, the district court set fo rth som ewhat different conditions. The court stated that, in addition to the prohibition against firearm possession, Segura-Lara “shall not use drugs, alcohol or tobacco products with out a prescri ption from a non-relative physician.” On appeal, Segura-Lara claims th at the special conditions of supervised release prohibiting him from using drugs or tob acco products wit hout a prescription from a non-relative physician, as stated in t he written judgment, are vague and overbroad and must be striken. 1 Segura-Lara argues th at the conditions are too vague to provide him wit h notice of what conduct he m ust avoid. Specifically, he says th at scientists disagree about whether a particular drug is addictive, stimulat ive
or depressive, and th at the rubric of “drugs” or “tobacco products” includes a host of legal substances, like caffeine, cigarettes, and over-the-counter medications that do not have to be prescribed by a licensed physician. Segura-Lara further points out that the prohibition against using tob acco products is no t reasonably related to any statutory goal and involves a greater deprivation of libert y th an necessary. Segura-Lara did not raise this issue below and concedes that this court’s review is for plain error. 2 See United States v. Miller , 406 F.3d 323, 327 (5th Cir. 2005).3

The “district court has wide discretion in impo sing conditions of supervised release.” U nited States v. Paul , 274 F.3d 155, 164 (5th Cir. 2001). At the same time, the court’s discretion is limited by 18 U.S.C. § 3583(d). I d
. Special conditions of supervised release must be “reasonably related” to “(1) ‘the nature and circumstances of the of fens e and the hi story and characteristics of the defendant,’ (2) the need ‘to affo rd adequate deterrence to criminal conduct,’ (3) the need ‘to protect the public from further crimes of the defendant,’ and (4) the need ‘to pr ovide the def endant with needed [training], medical care, or other correctional treatm ent in the mo st effective manner.’” Id
. at 165 (quoting 18 U.S.C. § 3553(a)(1)–(2) (alteration in original). S ee also U.S.S.G. § 5D1.3(b). Further, the conditions may invo lve no greater deprivation of libert y th an is reasonably necessary to achieve the latter three statutory goals. Paul , 274 F.3d at 165. See also U.S.S.G. § 5D1.3(b). We agree wit h Segura-Lara th at the district court plainly erred in precluding his use of tob acco products. In United States v. Ferguson , 369 F.3d 847, 853 (5th Cir. 2004), the court fo und th at a prohibition against the defendant’s use of tobacco products was not reasonably related to his vio lat io n of fir earm possession. The Ferguson court further fo und th at, because there was no evidence th at tob acco use caused vio lent or illegal behavior in the defendant, the restriction was not reasonably necessary to advance the statutory goal s of deterrence, public safety, or medical care. I d
. As a result, the Ferguson court concluded th at the district court abused it s discretion and vacated th at condition of his sentence. I d
. at 854. Here, we similarly find that the prohibition against tobacco use is no t reasonably related to Segura-Lara’s crime of illegal reentry. Moreover, there is no evidence th at tobacco use will prompt illegal behavior in Segura-Lara and, therefore, the prohibition against it s use involves a greater deprivation of liberty than is necessary to achieve deterrence and public safety.3 This court notes th at District Judge Lynn Hughes, the sentencing judge in the inst ant appeal, was the

sentencing judge in Ferguson, Garcia-Flores , Baez-Leon , and United States v. Salinas , 142 F. App’x 830 (5th Cir. 2005), all fo ur cases in which a condition prohibiting tob acco use was fo und to be eit her an abuse of discretion or plain error. Additionally, both Ferguson and Salinas addressed improper drug-rel ated conditions. Segura-Lara was sentenced on July 26, 2004, after F erguson was decided.
4 An “o verbreadth” claim challenges the statutory criterion th at a condition may invo lve no greater deprivation of liberty th an is reasonably necessary. S ee Paul , 274 F.3d at 165 n.12 (“We interpret this ‘overbreadth’ claim to argue th at the supervised release condition vio lat es the second statutory criterion outl

ined abov e (i.e., the requi rement that supervised release conditions must involve no greater deprivation of libert y th an is reasonably necessary in light of the need to protect the publ ic and prevent recidivism.)”). 4 The Ferguson court reviewed the defendant’s condition of supervised release under the abuse of discretion standard because the defendant had properl y objected to the condition in t he district court. Ferguson , 369 F.3d at 852. We are reviewing Segura-Lara’s condition under a plain error standard of review, and fo llo w other panels of this court th at have fo und a condition prohibiting the
use of tob acco products, where not reasonably related to the defendant’s offense, does not survive the plain error standard of review. S ee United States v. Garcia-Flores , 136 F. App’x 685, 689 (5th Cir. 2005); United States v. Baez-Leon , 112 F. App’x 321, 321–22 (5th Cir. 2004). 3 Accordingly, the condition of supervised release prohibiting tobacco use is vacated. Segura-Lara also contests the prohibition against the use of “addictive or stimulat ive o r depressive drugs wit hout a prescri ption from a non-relative physician.” We agree that the district court plainly erred in wording the prohibition against drug use so broadly. 4 The district court did not limit the drug use prohibition to illegal or controlled substances, nor to specific addictive over-thecounter m

edication, and the condition, as it currently stands, includes over-the-counter medication th at is potenti ally stimulat ive or depressive but is not necessarily reasonably related to Segura-Lara’s5 Segura-Lara also argues th at the district court’s condition against stimulat ive drugs sweeps in such

substances as caffeine. However, this court has held that conditions of probation are to be read in a “commonsense way.” Paul , 274 F.3d at 167. As a result, it is unlikely that the condition would be enforced against Segura-Lara in such a way th at prohibits him from consuming caffeinated products.
6 Rel a tedl y, in an unpublished opinio n, this court held th at a prohibition against “any addictive substances” was not reasonably related to any o f t he enumerated statutory goal s of deterrence and public safety
. S ee Salinas , 142 F. App’x at 833–34. The court found that a specific prohibit io n against “narcotic” drugs and other “controlled substances” was related to th ose goal s and mo dified the defendant’s special conditions accordingly, tracking the language in 18 U.S.C. § 3563(b)(7). I d
. at 834. 5 of fense or history. 5 Additionally, a condition that prohibits the use of over-the-counter medication wit ho ut the consent of a physician involves a greater deprivation of liberty than is reasonably necessary to affo rd adequate deterrence of criminal con duct and protection of the public, in contravention of 18 U.S.C. § 3583. We find support for this position in F erguson , where this court fo und th at a bar to all over-the-counter medication was not reasonabl y r elated to the defendant’s of fense of fir earm possession, and the condition involved a greater deprivation of liberty than was reasonably necessary. 6 369 F.3d at 853. The Ferguson court did, notably, permit a condition th at pro hibited the defendant’s use of certain specific over-the-counter medication that is potentially addictive, like cough syrups with codeine or NyQuil. 369 F.3d at 853. The presentence report (“PSR”) indicates th at Segura-Lara has a conviction fo r cocaine distribution and, after his arrest, additional cocaine was found in his pocket. Due to thi s hist ory , a special condition prohibiting the use of illegal drugs, controlled substances, or addictive medication such as list ed in Ferguson would be considered reasonably necessary fo r deterrence, public safety,
or m edical care, see 18 U.S.C. § 3532(b)(7) (listing examples of an appropriate special conditions, including a prohibition against “any use of a narcotic drug or other controlled substance, as defined6

in section 102 of the Controlled Substances Act.”), and it would not infringe on Segura-Lara’s libert y
mo re th an is reasonably necessary . Therefore, we remand for resentencing on this condition of supervised release. In sum, we VACATE the condition of supervi sed release prohibiting tobacco use and REMAND for resentencing on the condition prohibiting drug use.