FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

FEB 18, 2009

THOMAS K. KAHN

CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 08-14077

Non-Argument Calendar

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D. C. Docket No. 08-00004-CR-01-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

ALDO ARNALDO GUZMAN,

Defendant-Appellant.

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Appeal from the United States District Court

for the Northern District of Georgia

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(February 18, 2009)

Before BLACK, BARKETT and FAY, Circuit Judges.

PER CURIAM:
Aldo Arnaldo Guzman appeals the district court’s imposition of a special

condition of supervised release, requiring him to inform the probation officer in

writing of his address in Mexico within 72 hours of his deportation from the

United States. For the reasons set forth below, we affirm.

I.

A federal grand jury returned a single-count indictment against Guzman,

charging him with being an alien found within the United States without

authorization after having been previously deported and removed from the country,

in violation of 8 U.S.C. § 1326(a) and (b)(2). At the plea hearing, the government

proffered that, on January 23, 2008, agents from Immigration and Customs

Enforcement (“ICE”) encountered Guzman in a jail in Hall County, Georgia, and

asked whether he was legally present in the United States. Guzman responded that

he was not legally present, and he provided a sworn statement to the agents

admitting that he was a Mexican national who had re-entered the country without

permission after having been previously deported. Guzman pled guilty to the lone

count in the indictment.

The probation officer prepared a presentence investigation report (“PSI”), in

which he set out Guzman’s offense conduct as follows: In January 2008, local law

enforcement in Hall County, Georgia, contacted Special Agent David Silka of ICE

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and informed him that Guzman had been detained for questioning regarding his

immigration status. Silka then reviewed Guzman’s immigration file and

discovered that, on May 17, 2007, Silka and members of the Hall County Gang

Task Force encountered Guzman in his residence in Georgia “following a state and

federal operation to locate and apprehend subjects who were illegally in the United

States.” At that time, Guzman informed Silka that he had crossed the border into

the United States from Mexico at a “very early age.” Guzman was deported to

Mexico in July 2007. Silka interviewed Guzman on January 23, 2008, at which

time Guzman admitted that, three weeks earlier, he had paid a smuggler $2,000 to

help him enter the United States.

The probation officer explained that Guzman’s parents were permanent

residents in the United States at the time of his birth but, for an unknown reason,

his mother returned to Mexico to give birth to Guzman. When Guzman was two or

three years old, his father returned to the United States and “smuggled” Guzman

into the country. Guzman had no relatives or friends in Mexico, as Guzman’s

parents, 3 siblings, girlfriend of 6 years, and 20-month old child all lived in

Georgia.

At the sentencing hearing, the parties confirmed that they had no objections

to the PSI, and, therefore, the district court adopted its findings of fact and

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guideline calculations. The court adjudicated Guzman guilty of the offense in the

indictment, sentenced him to six months’ imprisonment, and waived the fine. The

court also imposed a term of supervised release of one year, to begin upon

Guzman’s release from custody. The court included the following conditions of

supervision:

Within 72 hours of release from the custody of the Bureau of Prisons

the defendant shall report in person to the probation office in the

district to which the defendant is released.

If deported, then the defendant shall report within 72 hours of

deportation to the United States Probation Office in the Northern

District of Georgia in writing his current address.

After the court emphasized Guzman’s youth, cautioned him about returning

to the United States, and instructed him to make a good life for himself in Mexico,

the court asked if the parties had any objections to the sentence. At that point, the

following exchange took place:

DEFENSE COUNSEL: Your Honor, I have no objections to the

sentence other than the reporting within 72

hours in writing from Mexico. I think that’s

a condition of supervised release that he

cannot fulfill. When he’s taken from the jail

they don’t let him take any papers with him,

he’s put on a bus or a plane to Mexico, he is

not taken home. He is dropped off.

COURT: They don’t have pencil and paper in

Mexico?

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DEFENSE COUNSEL: Well, you have to have resources to buy it,

your Honor, and you have to know where to

send the address and I would submit that’s

beyond the court’s jurisdiction to impose.

COURT: In my opinion that’s an absurd objection.

Probation is meaningless if he’s not required

to report where he is living, and if the Court

of Appeals wants to say that’s an illegal

condition, then I certainly will abide by it,

but that’s absolutely absurd. And I – you

have a right to appeal that sentence if you

wish to do so.

Guzman appealed from the court’s judgment of conviction.

II.

“We review the district court’s imposition of a special condition of

supervised release for abuse of discretion, so long as the objection was preserved

for appeal.” United States v. Taylor, 338 F.3d 1280, 1283 (11th Cir. 2003). With

respect to the district court’s authority to impose special conditions of supervised

release, 18 U.S.C. § 3583(d) provides in pertinent part:

The court may order, as a further condition of supervised release, to

the extent that such condition –

(1) is reasonably related to the factors set forth in section 3553(a)(1),

(a)(2)(B), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation of liberty than is reasonably

necessary for the purposes set forth in section 3553(a)(2)(B),

(a)(2)(C), and (a)(2)(D); and

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(3) is consistent with any pertinent policy statements issued by the

Sentencing Commission pursuant to 28 U.S.C. 994(a);

any condition set forth as a discretionary condition of probation in

section 3563(b) and any other condition it considers to be

appropriate . . . .

18 U.S.C. § 3583(d); see also U.S.S.G. § 5D1.3(b); United States v. Okoko, 365

F.3d 962, 965 n.5 (11th Cir. 2004) (“Because . . . § 5D1.3 mirrors the language

used in this statute, we consider it together with 18 U.S.C. § 3583(d) in reviewing

the district court’s imposition of a special condition on a supervised release.”).

III.

Thus, the district court was authorized to impose its reporting requirement

under this “catchall” provision in § 3583(d) so long as the requirement satisfied the

above statutory criteria. See United States v. Zinn, 321 F.3d 1084, 1089 (11th Cir.

2003) (recognizing that, under § 3583(d), the “district court may impose any

condition of supervised release it deems appropriate so long as it comports with the

factors enumerated in § 3553(a)”). In this respect, not only did the district court

apparently consider its reporting requirement to be “appropriate,” but this

requirement is also encompassed by two discretionary conditions of probation in

18 U.S.C. § 3563(b). See 18 U.S.C. § 3563(b)(15) (authorizing the court to require

the defendant to “report to a probation officer as directed by the court or the

probation officer”); id. § 3563(b)(17) (authorizing the court to require the

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defendant to “notify the probation officer promptly of any change in address or

employment”).

Guzman contends that the court did not satisfy the first statutory criterion in

§ 3583(d) because its reporting requirement was not reasonably related to the

applicable § 3553(a) factors. The applicable § 3553(a) factors that the court must

consider are:

(1) the nature and circumstances of the offense and the history and

characteristics of the defendant;

(2) the need for the sentence imposed –

. . .

(B) to afford adequate deterrence to criminal conduct;

(C) to protect the public from further crimes of the defendant; and

(D) to provide the defendant with needed educational or vocational

training, medical care, or other correctional treatment in the most

effective manner . . . .

18 U.S.C. § 3553(a)(1), (a)(2)(B)-(D); see 18 U.S.C. § 3583(d)(1). We have

recognized that “the special condition imposed need not be related to each factor

listed . . . to avoid a determination that the court abused its discretion.” United

States v. Bull, 214 F.3d 1275, 1278 (11th Cir. 2000). “Instead, each factor is an

independent consideration to be weighed.” Id.

Specifically, Guzman contends that, because the government would be

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aware of Guzman’s deportation, the court’s reporting requirement had no practical

purpose and was not reasonably related to any of the above § 3553(a) factors. The

reporting requirement, however, was not imposed to confirm that Guzman was in

fact deported, but was rather designed to ensure that he remained in Mexico. The

reporting requirement reasonably seeks to accomplish this objective by

discouraging Guzman from immediately re-entering the United States, and, more

importantly, by allowing the probation officer to monitor his location. Ensuring

that Guzman remained in Mexico was strongly related to his unlawful re-entry

offense, was specifically designed to deter him from unlawfully re-entering again,

and, in this respect, would help protect the public from any future attempt by

Guzman to unlawfully re-enter the country. See 18 U.S.C. § 3553(a)(1),

(a)(2)(B)-(C). Thus, because the court’s reporting requirement was reasonably

related to several of the applicable § 3553(a) factors, it satisfied § 3583(d)(1). See

Bull, 214 F.3d at 1278.

Guzman also argues, as he did at sentencing, that it would be “practically

impossible” for him to satisfy the reporting requirement in light of the lack of

financial resources and family support available upon his arrival in Mexico.

Although he does not phrase it as such, this argument presumably relates to

§ 3583(d)(2), providing that the court’s condition of supervision must not involve a

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deprivation of liberty greater than reasonably necessary. 18 U.S.C. § 3583(d)(2).

In this case, there is nothing in the record to support Guzman’s assertion that he

would be financially incapable of informing the probation officer in writing of his

address in Mexico within 72 hours of his deportation. Thus, the district court did

not abuse its discretion on this point. See Taylor, 338 F.3d at 1283 (“We will

reverse [for abuse of discretion] only if we have a definite and firm conviction that

the district court committed a clear error of judgment in the conclusion it

reached.”) (quotation and alteration omitted).

With respect to the third statutory criterion, Guzman does not argue that the

court’s reporting requirement is inconsistent with any policy statement issued by

the Sentencing Commission and, therefore, he has abandoned any such contention.

United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998) (stating that

arguments not raised on appeal are abandoned).

In sum, the district court was authorized under § 3583(d) to impose its

reporting requirement, and, because this requirement satisfied the three statutory

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criteria, the court did not abuse its discretion in doing so. Accordingly, we affirm.

AFFIRMED.

We reject Guzman’s remaining two arguments challenging the court’s authority under 1

§ 3583(d). First, Guzman’s reliance on the canon of statutory construction known as expressio unius

est exclusio alterius is without merit because the specific reference to deportation in § 3583(d) did

not, by negative implication, preclude the court from imposing the reporting requirement under

§ 3583(d)’s catchall provision. Second, Guzman’s reliance on our decision in Okoko – holding that

the district court may not toll a period of supervised release while a defendant is lawfully outside

the United States – is without merit because the court’s condition took effect upon Guzman’s arrival

in Mexico. See 365 F.3d at 964-67.

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