United States v. Arbizu

United States Court of Appeals
Fifth Circuit
F I L E D
November 28, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-40644
_______________
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 another illegal reentry
and sentenced to a two-year prison term.
Because he had violated the terms of his ex-
isting supervised release by illegally reentering,
the district court revoked Arbizu’s supervised
release and imposed an additional one-year
sentence for the 2001 illegal reentry.

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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 3603(1). The gov-
ernment concedes that it cannot prove compli-
ance 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 suffi-
cient to hold him liable for violating those
conditions.
A district court may revoke a term of su-
pervised release on finding, by a preponder-
ance of the evidence, that the defendant vio-
lated a condition of supervised release. See
18 U.S.C. § 3583(e)(3). A district court’s re-
vocation of supervised release is reviewed for
abuse of discretion. United States v. McCor-
mick, 54 F.3d 214, 219 (5th Cir. 1995).
Whether failure 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 condi-
tions is an issue of first impression in this cir-
cuit. 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 re-
quiring the probation officer to provide the de-
fendant with written notice of the conditions is
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 condi-
tions 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 revoca-
tion of supervised release. A defendant who
knows that his supervised release terms bar
certain conduct should not be allowed to en-
gage in that conduct and then hide behind the
government’s failure to follow statutory notice
procedures during sentencing.
We conclude, therefore, that failure to pro-
vide written notice of the conditions of super-
vised release does not automatically invalidate
a revocation of such release if the defendant
received actual notice of the conditions im-
posed. Based on our review of the record, we
see no reason to doubt the district court’s find-
ing that Arbizu received such actual notice.
The district court did not abuse its discre-
tion when it revoked Arbizu’s supervised re-
lease. The judgment is AFFIRMED.

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