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 reversible plain error by subjecting him to a term 

of intermittent confinement as a mandatory condition of his supervised 

release. Because Magana has not demonstrated that his appeal is ripe for 

review, we DISMISS for lack of jurisdiction.

 

* Pursuant to 5TH CIR. 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 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

September 13, 2016

Lyle W. Cayce

Clerk

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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 withinGuidelines range of 84 months of imprisonment and a three-year term of 

supervised release. The district court at 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 Court 

pursuant to law.” See 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 “condition of 

supervised release, . . . any condition 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 Prisons [(“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) (quoting 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 

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violation was alleged and adjudicated” as required under § 3583(d)(3). The 

Government counters that Magana’s appeal is not ripe for review because, 

contrary to Magana’s assertions, any term of intermittent confinement is in 

fact contingent upon “a future allegation that [Magana] committed a violation 

of supervised release during the first year of his term” of supervised release.

Because 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 States 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. 2010). 

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 likely 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 claim is not ripe for review if ‘it rests 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 distinguished between ripe and unripe challenges to 

special conditions 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 mandatory—i.e., their imposition is “not contingent on future 

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

appeal. Id.; see also, e.g., United States v. Paul, 274 F.3d 155, 164–66 (5th Cir. 

2001) (reviewing a challenge to the legality of a special condition “requiring 

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[the defendant] to avoid contact” with minors). An appeal, however, is not ripe

if it is “a matter of conjecture” whether the requirements of the condition 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 Carmichael is instructive. In that case, the district court 

imposed a “mandatory condition of supervised release” that “required that . . . 

the probation officer be allowed 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 the 

record does not support his argument that he will automatically be subject to 

a term of intermittent confinement upon release. Rather, as the district court 

pronounced at sentencing, Magana would “submit” to a term of intermittent 

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confinement only “at the direction of the Court pursuant to law.”1 The law, 

however, includes the aforementioned limitation, 18 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 terms of 

supervised release comply with the Federal Rules of Criminal Procedure. 18 

U.S.C. § 3583(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 defendant’s supervised release. Arciniega-Rodriguez, 581 F. 

App’x at 420; accord United States v. Figueroa-Munoz, 592 F. App’x 336, 336

(5th Cir. 2015) (per curiam). In these cases, we held that “[t]he possibility that 

the [BOP] will misinterpret” a district court’s sentence “as requiring [the 

defendant] to serve a term of intermittent confinement immediately upon 

beginning his term of supervised release is 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.” To the extent Magana 

argues that the district court’s written statement varied from its oral pronouncement 

regarding his conditions 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, we disagree with his reading of the written judgment. The written 

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, this difference in phrasing is immaterial. District 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).

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App’x at 337.2 This reasoning applies with equal force in this case, as Magana’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.

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