United States Court of Appeals

Fifth Circuit

FILED

November 28, 2005

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

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m 04-40644

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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

WILBERT MARTIN ARBIZU,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

m 1:04-CR-111-ALL

______________________________

Before DAVIS, SMITH, and DENNIS, 

Circuit Judges.

PER CURIAM:

In 2001, Wilbert Arbizu pleaded guilty of

illegally reentering the United States and was

sentenced to a prison term followed by a

three-year term of supervised release. As a

condition of the supervised release, Arbizu

was not again to reenter the country illegally.

In 2004, while still under supervised release,

Arbizu was convicted of anotherillegalreentry

and sentenced to a two-year prison term.

Because he had violated the terms of his existing supervised release byillegallyreentering,

the district court revoked Arbizu’s supervised

release and imposed an additional one-year

sentence for the 2001 illegal reentry.
2

Arbizu asserts that he cannot be held liable

for violating the terms of hissupervised release

because he did not receive written notice of

the conditions of the release as required by 18

U.S.C. §§ 3583(f) and 3603(1). The government concedesthat it cannot prove compliance with the statutory notice requirements,

but it argues that Arbizu had actual notice of

his supervised release conditions despite its

non-compliance and that such notice is sufficient to hold him liable for violating those

conditions.

A district court may revoke a term of supervised release on finding, by a preponderance of the evidence, that the defendant violated a condition of supervised release. See

18 U.S.C. § 3583(e)(3). A district court’s revocation of supervised release is reviewed for

abuse of discretion. United States v. McCormick, 54 F.3d 214, 219 (5th Cir. 1995).

Whetherfailure to provide written notice of

the terms of supervised release automatically

invalidates a revocation of such release if the

defendant received actual notice of the conditions is an issue of first impression in this circuit. The statutes are silent on the question.

Every other circuit that has confronted this

issue has held that the government’s failure to

provide the notice required by the statutes

does not limit the district court’s authority to

revoke supervised release where the defendant

had actual notice of the release terms. See

United States v. Ortega-Brito, 311 F.3d 1136,

1138 (9th Cir. 2002); United States v. Felix,

994 F.2d 550, 551 (8th Cir. 1993); United

States v. Ramos-Santiago, 925 F.2d 15, 17

(1st Cir. 1991).

Although these cases are not controlling in

this circuit, the sentiments underlying their

holdings are persuasive. The purpose of

§§ 3583(f) and 3603(1) is to ensure that the

defendant is notified of the conditions of his

supervised release. Congress decided that requiring the probation officer to provide the defendant with written notice ofthe conditionsis

the best way to ensure the defendant knows

what is expected of him during the supervised

release period. It would be patently unfair to

revoke a defendant’s supervised release and

send him back to prison for violating conditions of the release that he had no way of

knowing existed. 

Congress, however, did not decide that a

defendant who does not receive the proper

written notice should be immune from revocation of supervised release. A defendant who

knows that his supervised release terms bar

certain conduct should not be allowed to engage in that conduct and then hide behind the

government’sfailure to followstatutorynotice

procedures during sentencing. 

We conclude, therefore, that failure to provide written notice of the conditions of supervised release does not automatically invalidate

a revocation of such release if the defendant

received actual notice of the conditions imposed. Based on our review of the record, we

see no reason to doubt the district court’sfinding that Arbizu received such actual notice.

The district court did not abuse its discretion when it revoked Arbizu’s supervised release. The judgment is AFFIRMED.