Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

United States v. Pacheco-Donelson

United States Court of Appeals, Tenth Circuit

June 22, 2018

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DOMINIC PACHECO-DONELSON, Defendant-Appellant.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CR-00451-RBJ-1)

          Meredith B. Esser, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with her on the briefs), Denver, Colorado, for Defendant-Appellant.

          Michael C. Johnson, Assistant United States Attorney (Robert C. Troyer, United States Attorney, with him on the brief), Denver, Colorado, for Plaintiff-Appellee.

          Before BACHARACH, KELLY, and MORITZ, Circuit Judges.

          BACHARACH, CIRCUIT JUDGE.

         This appeal stems from a special condition of supervised release, which banned Mr. Dominic Pacheco-Donelson from associating with any gang members. He challenges the ban only with respect to its inclusion of two of his foster brothers. To Mr. Pacheco-Donelson, inclusion of the two foster brothers renders the ban procedurally and substantively unreasonable. We disagree.

         Mr. Pacheco-Donelson failed to object in district court based on procedural reasonableness, and he has not shown plain error. In addition, the special condition is substantively reasonable, for it is reasonably related to the statutory sentencing factors and does not deprive Mr. Pacheco-Donelson of greater liberty than is reasonably necessary. We therefore affirm.

         I. In a special condition of supervised release, the district court banned Mr. Pacheco-Donelson from associating with gang members.

         Mr. Pacheco-Donelson was on supervised release when he was arrested for violating the conditions. The arrest led to revocation, and the district court sentenced Mr. Pacheco-Donelson to eight months' imprisonment and two more years of supervised release. The court re-imposed the prior conditions of supervised release, including a ban on associating with gang members.

         At the revocation hearing, Mr. Pacheco-Donelson objected to the ban insofar as it included two of his foster brothers. The probation officer responded, expressing concern about Mr. Pacheco-Donelson's continued association with the two foster brothers because of their gang affiliations. Following this expression of concern, the district court overruled Mr. Pacheco-Donelson's objection: "Well, then that's all I need to hear. The term is that he not associate knowingly with gang members, and if that includes relatives, so be it. Can't do it." R. Vol. III, at 18.

         On appeal, Mr. Pacheco-Donelson challenges inclusion of the two foster brothers in the ban on associating with gang members.[1]

         II. Mr. Pacheco-Donelson fails to show plain error on his claim of procedural reasonableness.

         Mr. Pacheco-Donelson argues that the special condition was procedurally unreasonable because the district court failed to make adequate findings. The threshold issue involves preservation of this argument in district court.

         Mr. Pacheco-Donelson contends that he objected to the special condition of release during his revocation hearing. But there his stated grounds were substantive, not procedural. He objected on the ground that his foster brothers' "present or prior affiliation with a gang . . . should not trump his familial relationship with those individuals." Id. at 17-18. Mr. Pacheco-Donelson did not allege that the findings were inadequate, and his substantive objection did not preserve the procedural issue on the adequacy of the findings. See United States v. Mendoza, 543 F.3d 1186, 1191 (10th Cir. 2008) ("A party must specifically object to the district court's procedure in order to preserve that issue for review.").

         Though the issue is unpreserved, Mr. Pacheco-Donelson contended in his reply brief that he should prevail even under the plain-error standard. We will consider the issue under this standard. See United States v. Courtney, 816 F.3d 681, 683-84 (10th Cir. 2016) (reviewing a claim under the plain-error standard when argued in the reply brief).

         For plain error, Mr. Pacheco-Donelson must show that an error

. was committed,
. is plain,
. affects substantial rights, and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.