UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

________________ _________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. DAMON RAMON MARTINEZ, Defendant - Appellant. No. 19-1389 (D.C. No. 1:18-CR -00522-WJM-1) (D. Colo.)

________________ _________________ ORDER AND JUDGMENT *

________________ _________________ Before PHILLIPS , EBEL , and CARSON , Circuit Judges.

________________ _________________ We return to the familiar subject of supervised-release conditions, this time examining the District of Colorado’s post- Cabral version of Standard Condition 12. Under this condition, a probation officer may, after getting the district court’s approval, (1) notify third parties of risks presented by a defendant or (2) direct the defendant to notify the third parties. Damon Martinez ar gues that post-sentencing risk notification under Standard Condition 12 would be a modification of his supervised-release conditions and thus require the district court to hold a he aring under Federal Rule of Criminal Procedure 32.1(c) be fore approving any risk notif ication. Under the prudential-

* This order and judgment is not bi nding precedent, except under the doctrines of law of the case, res judica ta, and collateral estoppel. It may be cited, however, for its persuasive value consiste nt with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### June 23, 2021 Christopher M. Wolpert Clerk of Court2 ripeness doctrine, we decline to reach this argument because it requires factual development. As a secondary issue, Martinez contends that the district court erred in treating two of his earlier felony convictions as crimes of violence, which increased his advisory imprisonment range. He concedes th at existing circuit precedent forecloses his argument and raises it now to preserve it for further appellate review. Accordingly, we dismiss Martinez’s appeal on the first argum ent and affirm the district court on the second argument.
I. Background Damon Martinez violated his state parole arising from his Colorado felony robbery conviction. State correctional official s tracked him to a location and minutes later stopped his car. After finding dr ugs on him, the officials sear ched his car and found more drugs and a loaded firearm. A federal grand ju ry indicted him on a charge of felon in possession of a firearm, and Martinez pleaded guilty. The probation office prepared and revised a presentence report (“PSR”). In the dist rict court, Martinez objected to the PSR’s recommendation that the court impose the Dist rict of Colorado’s Standard Condition of Supervised Release 12. The di strict court denied the objection, and Martinez now appeals.
II. Discussion Under the District of Colorado’s Sta ndard Condition 12, a probation officer may after getting the district court’s approval (1) notify third parties of risks presented by a defendant or (2) direct the de fendant to notify the third pa rties of the risks. But as Martinez points out, this version of Stan dard Condition 12 doesn’ t answer whether the3 later risk notification is a “modification” of supervised-release conditions. If it is, Martinez would have a right to a counsele d hearing under Fed. R. Crim. P. 32.1(c) 1 before the district court approved any risk no tification. Martinez asks not that we strike down Standard Condition 12 but that we interpret it as being subject to Rule 32.1(c). We conclude that Martinez has failed to satisfy the prudential-ripeness doctrine for this claim and decline to reach its merits. A. Prudential-Ripeness Doctrine “We review the issue of ripeness de novo.” Roe No. 2. v. Ogden , 253 F.3d 1225, 1231 (10th Cir. 2001). “E ven when an appeal satisfies Artic le III’s ‘case or controversy’ requirement, we may still decline to review it under the prudential ripeness doctrine,” which “turns on two factors: (1) ‘the fitness of the issue for judicial review,’ and (2) ‘the hardship to the parties from withholding review.’” United States v. Cabral , 926 F.3d 687, 693 (10th Cir. 2019) (quoting United States v. Bennett , 823 F.3d 1316, 1326 (10th Cir. 2016)). In addressing prudential ripene ss, the parties rely primarily on United States v.

1 This Rule reads as follows: (c) Modification. (1) In General. Before modifying the c onditions of probation or supervised release, the court must hold a hearing, at which the person has the right to counsel and an opp ortunity to make a statement and present any information in mitigation. (2) Exceptions. A hearing is not required if: (A) the person waives the hearing; or (B) the relief sought is favorable to the person and does not extend the term of probation or supervised release; and (C) an attorney for the governme nt has received notice of the relief sought, has had a reas onable opportunity to object, and has not done so.4 Cabral . So we review that case before turning to Martinez’s claim.
1. United States v. Cabral
In Cabral , this court examined the District of Colorado’s pre-2019 version of Standard Condition 12. 2 That version read as follows: If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify that person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk. 926 F.3d at 691. 3 Cabral contested this condition on two grounds: (1) that the risknotification provision was unconstitutionally va gue, and (2) that th e “condition improperly delegate[d] judicial power to a probation officer to decide the scope of the ‘risk’ that should trigger the notification requireme nt, thereby delegating the power to ‘decide the nature or extent of [Mr. Cabral’s] punishment.’” Id . at 692–93 (quoting Cabr al’s opening brief). This court concluded that the vagueness challenge was unripe for review but that the improperdelegation challenge was ripe for review. Id . at 693–94.

2 On July 16, 2019, the District of Co lorado amended its ve rsion of Standard Condition 12 in response to Cabral

.
3 This condition is the s ubstantial equivalent of U.S.S.G. § 5B1.3(c)(12) (2018), which reads as follows: If the probation officer determines th at the defendant poses a risk to another person (includi ng an organization), th e probation officer may require the defendant to notify the person about the risk and the defendant shall comply with that instruction. The probation officer may contact the person and confirm that the defendant has notifie d the person about the risk.5 We declined to review Cabral’s vagueness challenge to the Dist rict of Colorado’s pre-2019 version of Standard Condition 12 af ter concluding that the challenge wasn’t fit for review and that Cabral would face lit tle hardship from our withholding review. In deciding whether an i ssue is fit for judicial revi ew, “we focus on whether the determination of the merits turns upon strictly legal issues or requires facts that may not yet be sufficiently developed.” Id . at 693 (quoting United States v. Ford , 882 F.3d 1279, 1283 (10th Cir. 2018)). In Cabral , we held that the vaguene ss challenge was not fit for judicial review, because “it would be virtually impossible to resolve [it] without factual development.” Id . at 694. In this regard, we noted that “we do not kn ow how (or even whether) the probation officer would choose to enforce the risk-n otification condition.” Id . And “[e]ven if we could resolve this pre- enforcement challenge, as a pure question of law, our precedent strongly di sfavors challenges to supervised-release conditions that might never be applied.” Id . Thus, Cabral’s vagueness cha llenge wasn’t fit for review “[b]ecause the scenarios Mr. Cabral alludes to may not occur as anticipated, or indeed may not occur at all, depending on the probation officer’s future decisions[.]” Id . (internal quotation marks and citations omitted). In support, we relied on two cases in whic h the uncertainty of future events led us to rule that arguments were unfit for review. Id . at 695. In the first, United States v. Ford , 882 F.3d 1279 (10th Cir. 2018), we held th at a supervised-release challenge regarding polygraph examination was unripe because it was “contingent on the decision of a different actor.” Id. (quoting Ford , 882 F.3d at 1286). And in the second, United States v.
Bennett , 823 F.3d 1316 (10th Cir. 2016), we held th at a supervised-release challenge to a6 plethysmograph-testing condition was unripe “whe re a ‘treatment provider must evaluate [the defendant] and find that testing is approp riate’ before the testing could be imposed.” Id. (quoting Bennett , 823 F.3d at 1327). In assessing whether Cabral would suffe r hardship from our withholding review, we considered whether he would “‘face a di rect and immediate dilemma’ arising from the supervised-release conditi on he is challenging.” Cabral , 926 F.3d at 693 (quoting
Bennett , 823 F.3d at 1328). We conc luded that “Mr. Cabral will face little hardship if we decline to review [his vagueness challenge] now.” Id . at 694. Indeed, we noted that Cabral’s dilemma—whether to comply with a risk-notific ation directive—would arise “only if his probation officer directs him to notify someone.” Id . at 695. Though we acknowledged that, by later ordering Cabral to notify third parties of risk, a probation officer could exercise “broad power to infringe on Mr. Cabral’s rights,” we agreed with the government that those scenarios had not occurred an d may never occur. Id . Echoing Ford , we declared that “[w]hen a condition of supervised release is , by its own terms, contingent on the decision of a different acto r” “that condition is not ripe for immediate review.” Id . (quoting Ford, 882 F.3d at 1286). We stated that “[t]his holds true even if the potential hardship is significant, and even if the challenge could theoretically be analyzed without waiting for its application.” Id . (citing Ford , 882 F.3d at 1286–87). In his second challenge, Cabral argued that the District of Colorado’s pre-2019 version of Standard Condition 12 improperly de legated to the probation officer the power to define terms such as “risk” and thus to “determine what conduct the condition proscribes and when it will be enforced.” Id . at 697. We held that this challenge was ripe7 for review. Id . In support, we noted that this issue “p resents ‘a legal [question] that can be easily resolved’ without additi onal factual development.” Id . at 696 (quoting Ford , 882 F.3d at 1284). Unlike with th e potential polygraph testing in Ford , we observed that “Mr. Cabral is challenging the alre ady-realized delegation of j udicial power to a probation officer, not merely some hypothetical future violation that delegation might allow.” Id . In other words, the improper delegation was co mplete when the court imposed Standard Condition 12: “The district c ourt’s delegation to the proba tion officer occurred at the moment the district court tasked the probatio n officer with assessing Mr. Cabral’s risk and did so without me aningful direction.” Id . The propriety of the delegation did not “depend on how (or even whethe r) the probation officer migh t later choose to wield the delegated power.” Id . Thus, we ruled that “the ques tion whether the risk notification condition improperly delegated j udicial power is presently fit for judicial review.” Id

. In view of this, we concluded that “[ t]he burden Mr. Cabral would face if we do not consider his challenge now weighs at least slightly in favor of review.” Id . Though recognizing that Cabral would suffer no hard ship unless the probation officer invoked the risk-notification condition, we noted that Cabral could cha llenge the condition after that “only without the benefit of a ppointed counsel or ‘risk re-i ncarceration’ by violating the condition.” Id . at 696–97 (quoting Ford , 882 F.3d at 1284). We distinguished Ford on grounds that Cabral had presented a “pure improper-delegation challenge.” In this circumstance, which did not require factual development, we fou nd sufficient hardship from the possibility that Cabral would later ha ve to hire counsel or proceed pro se to challenge the condition. Id . at 697.8 2. Martinez’s Case Martinez fails to satisfy either of the two prongs on which ou r prudential-ripeness inquiry turns. Martinez argues that his Rule 32.1(c) ar gument is fit for review like Cabral’s improper-delegation argument was. We disagree. In Cabral , as noted, we found it important that the delegation wa s complete at the instant th e district court imposed the District of Colorado’s pre- 2019 Standard Condition 12. See 926 F.3d at 696. In contrast, Martinez’s Rule 32.1(c) argum ent, like Cabral’s vagueness argument, requires factual development on several points: (1) whether the probation officer will determine that Martinez presents a risk to a third party; (2) whether the probation officer will determine that the risk merits notifying the third part y of it; (3) whether the probation officer will request that the district court approve the probation officer’s ordering Martinez to notify9 the third party of the risk 4 ; (4) whether the district cour t will agree with the probation officer and approve the probati on officer’s ordering Martinez to notify the third party of the risks; and (5) whether the district court will give this approval without holding a Rule 32.1(c) hearing. 5 In short, Martinez’s Rule 32.1(c) i ssue is not fit for review for the same reasons that Cabral’s vagueness co ndition was not yet fit for review. See 926 F.3d at
694–95. Second, Martinez argues that he will suffer hardship if we dec line to decide the merits of his argument now. But Martinez’s ha rdship argument fails for the same reason that Cabral’s did on his vagueness argument. In Cabral , we concluded that the vagueness challenge didn’t present sufficient hardship, even though Cabral would later “suffer a

4 We agree with the government that a ny risk notification to third parties by the probation officer wouldn’t constitute a condition of Martinez’s supervised release. Simply put, it wouldn’t compel Martinez to do anything or expose him to revocation of supervised release. In fact, the District of Colorado’s pre- Cabral version of Standard Condition 12 didn’t require the probation officer to get the district court’s approval be fore personally notifying thir d parties of a defendant’s risks. But its post- Cabral version does: If the probation officer determines that you pose a risk to another person (including an organization) , the probation officer may , after obtaining Court approval, notify the person about the risk or require you to notify that the person about the risk and you must comply with that instruction. The probation officer may contact th e person and confirm that you have notified the person about the risk. Vol. 1 at 117 (post- Cabral language italicized). If it choo ses to do so, a district court can require its pre-approval before probati on officers themselves notify third parties of a defendant’s risks. But not hing in § 5B1.3(c)(12) or Cabral requires that.

5 Because we resolve this issue on prudential-ripen ess grounds, we need not address whether risk-notification approv al must comport with Rule 32.1(c).10 burden from the lack of appointed counsel to challenge the cond ition.” 926 F.3d at 696. So too here.
B. U.S.S.G. § 4B1.2 Crimes of Violence Martinez contends that Application Note 1 to U.S.S.G. § 4B1.2 runs counter to the guideline text by defining “crime of violence” as including attempts and conspiracies to commit those offenses. Ma rtinez seeks to preserve the issue of whether his felony convictions for attemp ted robbery and conspiracy to commit menacing with a deadly weapon qualify as crimes of violence, but he acknowledges that we cannot now accept su ch an argument. Absent a contrary Supreme Court ruling or en banc ruling from our court, we must abide our ear lier decision that Application Note 1 is a permissi ble interpretation of § 4B1.2(a). See United States v.
Martinez , 602 F.3d 1166 (10th Cir. 2010).
CONCLUSION We dismiss Martinez’s ch allenge to Standard Cond ition 12 as prudentially unripe and affirm the district court’s cr ime-of-violence findings and sentence.

Entered for the Court
Gregory A. Phillips Circuit Judge