### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 50986

UNITED STATES OF AMERICA,

Plaintiff

–

Appellee,

v. JOSE ALFREDO MAGANA, JR.,

Defendant

– Appellant.

Appeal from the United States District Court for the Western District of Texas USDC No. 3:14

- CR

- 2165

- 1

Before JONES, DENNIS, and PRADO, Circuit Judges

. PER CURIAM: * Defendant

– Appellant Jose A. Magana, Jr. appeals his sentence, arguing
the district court committed reversibl e plain error by subjecting him to a term of intermittent confinement as a mandatory condition of his supervised
release. Because Magana has not demonstrated th at his appeal is ripe for
review , we DISMISS for lack of jurisdiction.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR .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

### FILED September 13, 2016 Lyle W. Cayce Clerk Case: 15-50986 Document: 00513675683 Page: 1 Date Filed: 09/13/2016No. 15

- 50986

2 I. BACKGROUND Magana pleaded guilty to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g) (1) . The district court sentenced him to a within

Guidelines range of 84 months of imprisonment and a three

- year term of supervised release

. The district court a t sentencing announced that Magana’s term of supervised release included “the special condition that [ he ] submit to up to one year of intermittent confinement at the direction of the C ourt pursuant to law.” S ee 18 U.S.C. § 3563(b)(10) . Magana objected to the
substantive reasonableness of his sentence but did not object to the conditions of his supervised release

. This appeal followed. II. DISCUSSION Under 18 U.S.C. § 3583 (d), a district court may order, as a “ co ndition of supervised release, . . . any condit ion set forth as a discretionary condition of probation in [18 U.S.C. § 3563(b)].” One such discretionary condition is a term of intermittent confinement pursuant to § 3563(b)(10), which requires a defendant to “remain in the custody of the Bureau of Priso ns [(“BOP”)] during nights, weekends, or other intervals of time, totaling no more than the lesser of one year or the term of imprisonment authorized for the offense, during the first year of the term of probation or supervised release.” 18 U.S.C

. § 3563(b ) (10) . However, a term of intermittent confinement “may be ‘ imposed only for a violation of a condition of supervised release in accordance with [the rules governing the modification or revocation of supervised release] and only when facilities are available. ’ ” United States v. Arciniega

- Rodriguez , 581 F. App’x 419, 420 (5th Cir. 2014) (per curiam) (alteration in original) (q uoting 18 U.S.C. § 3583(d)(3)); see also U.S.S.G. § 5F1.8

. Magana argues that the district court committed reversible plain error because it “ordered that the first year of Magana’s supervised release be served in some form of ‘intermittent confinement’” even if no “supervised

- release Case: 15-50986 Document: 00513675683 Page: 2 Date Filed: 09/13/2016No. 15

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3 violation was alleged and adjudicated” as required under § 3583(d) (3) . The G overnment counters that Magana’s appeal is not ripe for review because,
cont rary to Magana’s assertion s , any term of intermittent confinement is in fact contingent upon “a future allegation that [Magana] committed a violation of supervised release du ring t he first year of his term ” of supervised release.
Becau se Magana did not object at sentencing to the conditions of his supervised release, plain error review would apply to the substantive merits of his challenge to those conditions on appeal

. United Stat es v. Scott , 821 F.3d 562, 570 (5th Cir. 2016)

. However, “[r]ipeness is a component of subject matter jurisdiction, because a court has no power to decide disputes that are not yet justiciable.” Lopez v. City of Houston , 617 F.3d 336, 341 (5th Cir. 201 0). Accordingly, whether Magana’s claim is ripe is a jurisdictional issue we review
de novo. See United States v. Isgar , 739 F.3d 829, 838 (5th Cir. 2014 )

. “[T]he ripeness inquiry focuses on whether an injury that has not yet occurred is sufficiently likel y to happen to justify judicial intervention.”
Pearson v. Holder , 624 F.3d 682, 684 (5th Cir. 2010) (alteration in original) (quoting Chevron U.S.A., Inc. v. Traillour Oil Co. , 987 F.2d 1138, 1153 (5th Cir. 1993)) . “ A c laim is not ripe for review if ‘ it re sts upon contingent future events that may not occur as anticipated, or indeed may not occur at all. ’ ” United States v. Carmichael , 343 F.3d 756, 761 (5th Cir. 2003) (quoting Texas v. United States , 523 U.S. 296, 300 (1998)). Our case law has distinguishe d between ripe and unripe challenges to special conditi o ns of supervised release where, as here, a defendant has not yet begun his or her term of supervised release. If the strictures of a condition are patently mand atory

— i.e., their imposition is “not con tingent on future events”

— then a defendant’s challenge to that condition is ripe for review on appeal

. I d. ; se e also, e.g. , United States v. Paul , 274 F.3d 155, 16 4

– 66 (5th Cir. 2001) (reviewing a challenge to the legality of a special condition “ requiring Case: 15-50986 Document: 00513675683 Page: 3 Date Filed: 09/13/2016No. 15

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4 [the defendant] to avoid contac t” with minors )

. A n appeal, however, is not ripe if it is “a matter of conjecture” whether the requirements of the conditi on will take effect. Carmichael , 343 F.3d at 761

– 62; see also, e.g. , United States v. Ellis , 720 F.3d 220, 227 (5th Cir. 2013) (per curiam) (holding a challenge to a special condition that included “the possibility” that the defendant “ might be required to submit to psychotropic medication and psycho

- physiological testing” was “not ripe for review ” ). Our decision in Carmicha e l is instructive. In that case, the district court imposed a “mandatory condition of supervised release” that “ required that

. . . the probation officer be allow ed to collect DNA” from the defendants pursuant
to the DNA Analysis Backlog Elimination Act of 2000

. Carmichael , 343 F.3d at 757, 759. We held that the defendants’ constitutional challenge to this special condition was not ripe because the defendants would only “be required to submit to sampling during supervised release” if the BOP “fail[ed] to execute its statutorily

- imposed duty to collect the sample” while they were imprisoned.
Id. at 761. As we explained, “the possibility of DNA sampling during supervised release [was] speculative” given that it would require the BOP to “flout[] multiple layers of legal obligations placed upon it.” Id. Here, we hold that Magana ’s appeal is not ripe for review because t he record does not support his argument that he will automatically be subject to a term of intermittent confinement upon release. Rather, a s the district court pronounced at sentencing, Magana would “submit” to a term of intermittent Case: 15-50986 Document: 00513675683 Page: 4 Date Filed: 09/13/2016No. 15

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5 confinement only “at the direction of the Court pursuant to law.” 1 The law, however, includes the aforementioned limitation, 1 8 U.S.C. § 3583(d), that any term of intermittent confinement be “imposed only for a violation of a condition of supervised release.” Section 3583(d) also incorporates the requirements of 18 U.S.C. § 3583(e)(2) , which provide that any modification of the t erms of supervised release comply with the Federal Rules of Criminal Procedure

. 18 U.S.C. § 3 583(d), (e)(2 ). Thus, Magana’s challenge is not ripe for review because
it is based upon speculation that the district court , or the BOP , will disregard the “legal obligations placed upon it.” Carmichael , 343 F.3d at 761.
Further , we have previously rejected the argument that the district court erred by imposing “ a term of intermittent confinement as a ‘self

- effectuating’
condition ” of a de fendant’s supervised release

. Arciniega

- Rodriguez , 581 F. App’x at 420 ; accord United States v. Figueroa

- Munoz , 592 F. App’x 336, 33 6 (5th Cir. 2015) (per curiam ). In the se cases , we held that “[t]he p ossibility that the [BOP] will misinte rpret” a district court’s sentence “as requiring [the defendant] to serve a term of intermittent confinement immediately upon beginning his term of supervised release i s entirely speculative and remote .” Arciniega

- Rodriguez , 581 F. App’ x at 420

– 21 ; accord Figueroa

- Munoz , 592 F.

1 In his reply brief, Magana argues that the imposition of intermittent confinement is not contingent on future events because the “written judgment states that Magana will be intermittently confined during the first year of his supervised release.” T o the extent Magana argues that the district court’s w ritten statement varied from its oral pronouncement regarding his con dition s for supervised release , this argument is waived because it was raised for the first time in his reply brief. See United States v. Heacock , 31 F.3d 249, 259 n.18 (5th Cir. 1994). Moreover , w e disagree with his reading of the written judgment. The wr itten judgment tracks the district court’s oral statement by providing that Magana would be subject to intermittent confinement “as directed by the Court.” While the written judgment does not include the qualifier “pursuant to law ” that the district court included orally at sentencing, t his difference in phrasing is immaterial. D istrict courts are “presumed to know the law and to apply it in making their decisions.” Walton v. Arizona , 497 U.S. 639, 653 (1990), overruled on other grounds by Ring v. Arizona , 536 U.S. 584 (2002). Case: 15-50986 Document: 00513675683 Page: 5 Date Filed: 09/13/2016No. 15

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6 App ’ x at 337. 2 Th is reasoning applies with equal force in this case, as Mag a na’ s argument relies on the unfounded premise that the district court , or the BOP , will act unlawfully in the future.
III. CONCLUSION Accordingly, because Magana’s appeal is not yet ripe for review, we DISMISS for lack of jurisdiction.

2 Arciniega

- Rodriguez cited to our decision in United States v. Hatton , 539 F. App’x 639 (5th Cir. 2013) (per curiam), which, in turn , relied upon Carmichael

. See Hatton , 539 F. App’x at 639. Case: 15-50986 Document: 00513675683 Page: 6 Date Filed: 09/13/2016