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.
BACHARACH, KELLY, and MORITZ, Circuit Judges.
BACHARACH, CIRCUIT JUDGE.
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.
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
In a special condition of supervised release, the district
court banned Mr. Pacheco-Donelson from associating with gang
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.
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.
appeal, Mr. Pacheco-Donelson challenges inclusion of the two
foster brothers in the ban on associating with gang
Mr. Pacheco-Donelson fails to show plain error on his claim
of procedural reasonableness.
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.
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.").
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).
plain error, Mr. Pacheco-Donelson must show that an error
. was committed,
. is plain,
. affects substantial rights, and