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

_______________



### m 04-40644

_______________



### U NITED 

### S TATES OF 

### A MERICA



### ,

Plaintiff-Appellee,

VERSUS



### W ILBERT 

### M ARTIN 

### A RBIZU



### ,

Defendant-Appellant.

_________________________

Appeal from the United States District Court

for the Southern District of Texas



### m 1:04-CR-111-ALL

______________________________

Before D AVIS , S MITH , and D ENNIS

, Circuit Judges.

P ER C URIAM :

In 2001, Wilbert Arbizu ple a ded guilty of
illegally reentering the United States and was

sentenced to a pri so n term followed by a
three-year term of supervised release. As a

condition of the supervised rel ease, Arbizu was not again to reenter the country illegally.

In 2004, while s t ill under supervised release,

Arbizu was convicted of another illegal reentry

and sentenced to a two-year pris on term

. Because he had violated the terms of his existing supervised release by illegally reentering,

the district court revoked Arbizu’s supervised

release and imposed an additio nal one-year
sentence for the 2001 illegal reentry.2

Arbizu asserts that he cannot be held liable

for violating the terms of his supervised release

because he did not receive written notice of

the conditions of the release as required by 18

U.S.C. §§ 3583(f) and 36 03(1). The government concedes that it cannot prove compliance with the st at utory notice requirements,

but it argues that Arbizu had actual noti ce of

his supervised relea se conditions despite its
non-compliance and that such notic e is sufficient to hold him liable for v io lating those

conditions.

Adistrict court may revoke a term of supe r vised release on finding, by a preponderance of the evidence, that the defendant violated a condition of supervised release. S ee

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).

Whether failure to provide written notice of

the t erms of supervised release automatically

invalidates a revocatio n o f 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 provid e t he notice required by the statutes

does not limit

t he district court’s authority to

revoke supervised release where the defendant

had actual notice of the release terms. S ee

United States v. Ortega-Brito

, 311 F.3d 1136,

1138 (9 t h Cir. 2002); U

nited States v. Felix

, 994 F.2d 550, 551 (8th

Cir. 1993); U

nited

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

(1st Cir. 1991).

Although these cases are not controlling in

t his circuit, the sentiments underlying their

holdi n gs are persuasive. The purpose of §§ 358 3(f) and 3603(1) is to ensure that the

defendant is notified of the condit io ns of his
supervised release. Congress decided that requiring the probation officer to provide the defendant with written notice of the conditions is

t he best way to ensure the defendant knows

what is expected of him during the supervised
release period. It would be patently unfair to

r evoke a defendant’s supervised release and

send himback to prison for violating condit io ns of the release that he had no way of
knowing existed.

Congr ess, however, did not decide that a

def endant 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 cond u ct should not be allowed to engage in that conduct and then hide behind the
government’s failure to follow statutory notice
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’s finding that Arbizu received such actual notice.

Th e district court did not abuse its discretion when it revo ked Arbizu’s supervised release. The judgment is AFFIRMED.