# United States Court of Appeals

f or the Fifth Circuit

No. 22

- 60005

United States of America,
Plaintiff

— Appellee ,

versus
Justin Stabler,
Defendant

— Appellant

.

Appeal from the United States District Court for the Southern District of Mississippi USDC No. 3:17

- CR

- 130

- 1

Before Stewart, Willett, and Oldham , Circuit Judges

. Per Curiam : * Justin Stabler plead ed guilty to possession of a firearm by a felon in violation of Title 18 U.S.C. § 922(g)(1). The district court sentenced Stabler to the statutory maximum of 120 months ’ imprisonment followed by a 3

- year term of supervised release

. Stab ler challenges the length of his sentence and

* Pursuant to 5th Cir cuit R ule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir cuit R ule 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED November 4, 2022 Lyle W. Cayce Clerk Case: 22-60005 Document: 00516534440 Page: 1 Date Filed: 11/04/2022No. 22

- 60005

2 two of his special conditions of supervised release

. W e affirm the judgment of the district court

.

I. Facts & Procedural History Police officers responded to a call stating that a man in a black and white jacket and blue shorts was walking in the street brandishing a weapon. The officers approache d the scene and saw a man matching that profile. Officers demanded that the man drop th e weapon and get on the ground. The

man complied dropping a loaded 45/.410 caliber revolver . Officers identified and confirmed that the man was Stabler, a convicted felon on parole. As a result, Stabler was arrested and charged under § 922(g)(1) for being a felon in possession of a firearm. He pleaded guilty to the offense , pursuant to a plea agreement

. The U.S. Probation Office c ompiled a Presentence Report (“PSR”) detailing Stabler’s criminal history. The PSR calculated Stabler’s offense level to be 13, t aking into consideration that the weapon was stolen and that Stabler accept ed responsibility for his actions. Stabler’s total offense level considered alongside his criminal history score of VI resulted in an advisory G uideline s range of 33 to 41 months of imprisonment. The Government recommended, in accordance with the plea agreement, that Stabler be sentenced within the lower half of the G uidelines range.
However, t he district court sentenced Stabler to 90 months ’ imprisonment and thr ee years of supervised release. The district court noted that Stabler received suspended sentences for his prior convictions and

“ never really served any significant time for all those violations that have come up in his lengthy criminal past.” The distric t court also revealed that the probation officer recommended a 120

- month sentence in the sealed sentencing recommendation and stated that , while it did not impose this Case: 22-60005 Document: 00516534440 Page: 2 Date Filed: 11/04/2022No. 22

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3 sentence, it thought “that 120

- months could have been a legitimate and appropriate sente nce for [Stabler’s] prior conduct.”

The district court imposed seven special conditions of release, including that Stabler (1) “shall refrain from consuming alcohol while under supervision of the probation office” and (2) must “ submit his person, his house, his residence, his vehicle, his papers, electronic communication devices, or office to a search conducted by a United States Probation Officer.” The court limited the search condition stating that “[a]n officer may conduct a search . . . only when reasonable suspicion exists that [Stabler] had violated a condition of his supervision and that the areas to be searched contain evid ence of the violation. Any search must be conducted at a reasonable time and in a reasonable manner.” Stabler objected to the above

- the

- Guideline s sentence, the alcohol , and the electronics

- search condition s

. He argued that he only ha d “one arrest when he was 18 years old in 2004 for a DUI refusal” and that there was “no evidence presented to the court that he has any kind of alcohol issues.” The district court responded that it was going to leave that condition in place as he did not “quite understand why he was walking down the street with a loaded gun.” As to the electronics

- search condition, Stabler argued that such a condition “is typically associated with sex offenders as a special condition,” but there was no evidence that Mr. Stabler ever used elect ronic devices “for that purpose o r for any other reason such as drug use.” The district court stated it was going to keep that provision in place as well since Stabler had escaped or absconded in “at least two places in his criminal record.” Stabler appea led to this court challenging , inter alia , whether the confidential sentencing recommendation of the United States Probation Office contained additional factual matters that were not part of the PSR. The Government filed an unopposed motion seeking to vaca te Stabler’s sentence Case: 22-60005 Document: 00516534440 Page: 3 Date Filed: 11/04/2022No. 22

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4 and remand for resentencing, and we granted the motion. On remand, the PSR was revised to reflect that after pleading guilty, Stabler engaged in additional criminal behavior while he was incarcerated including numerous minor infractio ns and offenses such as “destruction of government property, failure to obey commands, refusing to work, assault on fellow inmates, possession of contraband, possession of a weapon, lewd sexual behavior, and making sexual advances towards a staff member.” Accordingly, Stabler’s PSR was revised to reflect an increased offense level of 16. That combined with his criminal history score produced a new advisory G uidelines range of 46 to 57 months of imprisonment. The district court adopted the PSR and the new su pplemental PSR addendum in full. At resentencing, Stabler was sentenced to 120 months in prison, which is the statutory maximum term of imprisonment. 1 The district court found that an above

- the

- G uidelines sentence was appropriate “ due to the nature and characteristics of the defendant , to promote respect for the law , and to protect the public from future crimes of the defendant.” The court emphasized that Stabler was on parole for four separate cr imes at the time of the offense, and that “nearly every time [Stabler] [had] been paroled, he [had] absconded or committed new crimes or had that parole revoked.” The court also noted that the crimes included multiple offenses against the property of other s. The district court concluded that it was “apparent [Stabler had] no respect for the law and no respect for others in the

1 At both the sentencing and resentencing, although Stabler denied membership in a ga ng, the district court heard testimony and determined that Stabler was a member and, therefore, was untruthful to probation. Despite this determination , the district court stated that it would have sentenced Stabler to the same 120

- month sentence “regardle ss of its finding as to this matter of gang membership.” Case: 22-60005 Document: 00516534440 Page: 4 Date Filed: 11/04/2022No. 22

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5 community” and that Stabler’s record was an “abomination” that “ cries out for such a sentence. ” Along with the 120 months’ imprison ment, Stabler was again sentenced to a 3

- year term of supervised release, including the aforementioned electronic s

- search and alcohol special conditions . Stabler objected on the same grounds as before , and the district court overruled the objections. Stabl er timely appealed

. II. Discussion Stabler argues (1) that his 120

- month above

- the

- G uidelines sentence is substantively unreasonable given that the advisory G uidelines range was 46 to 57 months; and (2) that the district court abused its discretion when it imposed the electronics

- search and alcohol special conditions of supervised release. We address each argument in turn. A. Sentencing Decision We review a district court’s sentencing decision for reasonablene ss. Gall v. United States , 552 U.S. 38, 46 (2007) . First, we ensure that the district court did not commit a “ significant procedural error. ” Id

. at 51. If the district court’s decision is procedurally sound, we “consider the substantive reasonableness of t he sentence imposed under an [ abuse of discretion ] standard.” Id

. Stabler does not argue that the district court made a procedural error , nor could he. T he district court correctly calculated the Guidelines range, treated the Guidelines as advisory, consi dered the 18 U.S.C. § 3553(a) factors, allowed both parties to present argument s , and made an

“ individualized assessment based on the facts presented. ” Id

. at 50. Accordingly, the central issue is whether Stabler ’s sentence was substantively un reasonabl e, or in other words, whether the d istrict court Case: 22-60005 Document: 00516534440 Page: 5 Date Filed: 11/04/2022No. 22

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6 abused its discretion in determining that the § 3553(a) factors justified a substantial deviation from the Guidelines range. Stabler argues that his sentence is substantively unreas onable because the district court erroneously balanced the sentencing factors. Primarily, Stabler emphasizes that most of his prior crimes do not involve violence against others. 2 We disagree.

When review ing the substantive reasonableness of a sentence , we look at the totality of the circumstances

. United States v. Churchwell , 807 F.3d 107 , 123 (5th Cir. 2015)

. We “may not apply a presumption of un reasonableness” where, as is the case here, the sentence is outside the Guidelines range. Gall , 552 U.S. at 51. Instead, we “ may consider the extent of the deviation, but must give due deference to the district court ’ s decision that the § 3553(a) factors, on a whole, jus tify the extent of the variance .” Id

. Th at this court “might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal.” Id

. In this c ircuit, “ [a] non

- Guidelines sentence unreasonably fails to reflect the statu tory sentencing factors set forth in § 3553(a) where it (1) does not account for a factor that should have received significant weight, (2) gives significant weight to an irrelevant or improper factor, or (3) represents a clear error of judgment in balanci ng the sentencing factors.” United States v. Diehl , 775 F.3d 714, 724 (5th Cir. 2015) ( citing United States v. Smith , 440 F.3d 704, 708 (5th Cir. 2006)).

2 Stabler also contends that the district court erred in considering his prior convictions as a basis to deviate from the advisory Guidelines range because the convictions were already accounted for in the offense level calculation. However, this court has a lready rejected this same argument in Smith , holding that “[a] defendant’s criminal history is one of the factors that a court may consider in imposing a non

- Guideline [s] sentence.” Smith , 440 F.3d at 709 (citing United States v. Mares , 402 F.3d 511, 519 ( 5th Cir. 2005)). Case: 22-60005 Document: 00516534440 Page: 6 Date Filed: 11/04/2022No. 22

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7 Here, e ven if many of Stabler’s past c onvictions do not involve violence against others, Stabler’s extensive criminal history support s the conclusion that the maximum sentence would promote respect for the law. The district court gave specific attention to the fact that Stabler was on parole for four se parate convictions when he committed the instant offense; nearly every time Stabler was on parole he absconded or committed a new crime; and he had not yet serve d any significant time for his previous convictions. The district court acknowledged that the s entence was above the Guidelines but determined that such a deviation was necessary here particularly because it was apparent that Stabler had “no respect for the law and no respect for others in the community.”

T he district court further determined that the maximum sentence was appropriate due to the nature and characteristics of the defendant and to protect the public from future crimes. We agree. M any of Stabler’s

c onvictions were against the property of others, and t he district court

re asonabl y a ssigned great weight to the fact that even after the initial

sentenc ing , Stabler committed numerous criminal acts that spanned nearly the entire time he was imprison ed. While the 120

- month sentence significantly deviat e d from the advisory range, the district court provided a

reason ed basis for imposing the maximum sentence

. Indeed , “[e] ven a significant variance from the Guidelines does not constitute an abuse of discretion if it is ‘ commensurate with the individualized, case

- specific

reaso ns provided by the district co u rt. ’ ” Diehl , 775 F.3d at 724 ( citation and quotation omitted). For these reasons, we conclude that Stabler’s sentence was substantively reasonable.

B. Conditions of Supervised Release

We next address Stabler’s arguments reg arding his special conditions of supervised release. Though “[ a ] district court ha s wide discretion in Case: 22-60005 Document: 00516534440 Page: 7 Date Filed: 11/04/2022No. 22

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8 imposing terms and conditions of supervised release,” it is subject to the limitations set forth in 18 U.S.C. § 3583(d). United States v. Vigil , 989 F.3d 406, 409 (5th Cir. 2021) (per curiam) (quoting United States v. Paul , 274 F.3d 155, 164 (5th Cir. 2001)). First, under § 3583(d), the condition must be “reasonably related” to at least one of the following factors: (1) “the nature and circumstances of the offense and the history and characteristics of the defendant”; (2) “afford[ing] adequate deterrence to criminal conduct”; (3) “protect[ing] the public from further crimes of the defendant”; and (4) “provid[ing] the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” § 3553(a)(1), (a)(2)(B)

– (D); § 3583(d)(1); see Vigil , 989 F.3d at
409. Second, “ the condition must be narrowly tailored such that it does not involve a ‘ gre ater deprivation of liberty than is reasonably necessary ’ to fulfill the purposes set forth in § 3553(a)

. ” United States v. Scott , 821 F.3d 562 , 570 (5th Cir. 2016) (quoting United States v. Duke , 788 F.3d 392, 398 (5th Cir. 2015) (per curiam) ); see § 3583(d)(2)

. Lastly , the condition must “ be

‘ consistent with any pertinent policy statements issued by the Sentencing Commission. ’ ” Vigil , 989 F.3d at 409 (quoting § 3583(d)(3) ).

The district court must also provide factual findings justifying the conditio ns. United States v. Salazar , 743 F.3d 445, 451 (5th Cir. 2014). In the absence of such a justification by the district court, “a court of appeals may nevertheless affirm a special condition ‘where the [district] court’s reasoning can be inferred after an examination of the record.’” United States v. Caravayo , 809 F.3d 269, 275 (5th Cir. 2015) (per curiam) (alteration in original) (quoting Salazar , 743 F.3d at 451). “ On the other hand, ‘ [w]here the district court ’ s rationale ’ in imposing the special condition ‘ is unclear ’ even after a review of the record, the special condition must be vacated . . .” Case: 22-60005 Document: 00516534440 Page: 8 Date Filed: 11/04/2022No. 22

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9 Id

. at 272 (quoting Salazar , 743 F.3d at 451 ). Because Stabler objected to the conditions before the district court, we review f or abuse of discretion. Id

. i. Electronics

- search Stabler argues that the electronics

- search condition does not meet the requirements of 18 U.S.C. § 3583(d)

. We disagree. Although the district court did not explain why it imposed the condition at the rese ntencing, at the initial sentencing it explained that Stabler had a lengthy criminal history which includ ed multiple occasions of abscond ment or escape

. We can , therefore, reasonably infer that Stabler’s criminal history and characteristics were a basis for the electronics

- search condition. This court has previously held that criminal history can justif y imposing electronics

- search conditions. See United States v. Hathorn , 920 F.3d 982, 987 (5th Cir. 2019) ( holding electronics

- search conditi on was “reasonably related” to conviction, history of drug use, and need to deter crime and protect the public); United States v. Balla , 769 F. App ’ x 127, 128

– 29 (5th Cir. 2019) (unpublished) ( affirming electronics

- search condition for defendant convicted of being a felon in possession of a firearm and ammunition because defendant’s criminal history implicated the sentencing goal of deterring future crime and protecting the public)

. T he instant condition is likewise reasonably related to the neces sary § 3553(a) factors.

The electronic s

- search condition is also narrowly tailored. In United States v. Dean , 940 F.3d 888 (5th Cir. 2019) we upheld , on plain

- error review,

a virtually identical condition against a defendant that was also convicted of bein g a felon in possession of a firearm and had the same criminal history

score of VI

. Dean included a special condition which required the defendant submit his electronic communications to a search upon reasonable suspicion and required probation officers to conduct the search “ at a reasonable time and in a reasonable manner.” Dean , 940 F. 3d at 890. We held that , given the Case: 22-60005 Document: 00516534440 Page: 9 Date Filed: 11/04/2022No. 22

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10 defendant’s criminal history, the special condition was narrowly tailored because “ the condition further requires that the pro bation officer must reasonably suspect that the areas to be searched contain evidence of the violation

. ” While Dean was reviewed for plain error rather than abuse of discretion, we find it persuasive. We , thus, hold th at in this case the limited electronic s

- search condition does not involve a greater deprivation of liberty than is reasonably necessary to fulfill the purpose of § 3553(a). 3

ii. Alcohol Stabler argues that the alcohol condition does not meet the requirements of § 3583(d) because he does not have a history of abuse. We dis agree. T he district court did not state a reason for the special condition

. However, we can infer from the record that t he basis of this condition is Stabler’s 2004 conviction of DUI refusal, possession of marijuana in a vehicle , and possession of alcohol by a minor. The record also shows that Stabler was arrested for consumption of alcohol as a minor . Additionally, in

a s eparate incident, Stabler was found in possession of a “green leafy substance” while incarcerated on other charges and refused to provide drug screens to correctional officers. Thus, S tabler ’s record shows multiple incidents involving alcohol and drugs and an extensive criminal history exemplifying a lack of respect for the law. Applying the deferential abuse

- of

discretion standard of review , under these circumstances , we cannot say that

3 Stabler also argues in conclusory fashion that the Sentencing Commission policy statement does not state anything “about ordering any special condition of supervision in relation to a felon in possession conviction.” However, we have held that “[a] distric t court has discretion to craft conditions of [supervised release], even if the Guidelines do not recommend those conditions.” United States v. Windless , 719 F.3d 415, 421 (5th Cir. 2013); Hathorn , 920 F.3d at 985

– 87 ; United States v. Acosta

- Navarro , 781 F . App’x 318, 325 n. 9 (5th Cir. 2019) (unpublished) (recognizing that “we have affirmed electronic

- search conditions even when the underlying conviction is not a sex crime”). Case: 22-60005 Document: 00516534440 Page: 10 Date Filed: 11/04/2022No. 22

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11 the district court ’ s rationale is unclear or that its reasoning can not be inferred from the record

. See Caravayo , 809 F.3d at 275 (holding that a special condition will not be disturbed on appeal if the district court’s reasoning can be inferred from the record). We therefore hold that the district court did not abuse its discretion in imposing the alcohol condition

. I II

. Conclusio n For the foregoing reasons, we AFFIRM Stabler’s sentence in full. Case: 22-60005 Document: 00516534440 Page: 11 Date Filed: 11/04/2022