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United States v. Hathorn

United States Court of Appeals, Fifth Circuit

April 11, 2019

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
DONALD LEE HATHORN, Defendant-Appellant.

          Appeal from the United States District Court for the Southern District of Mississippi

          Before HIGGINBOTHAM, SMITH, and HIGGINSON, Circuit Judges.

          JERRY E. SMITH, Circuit Judge

         Donald Hathorn violated his supervised release ("SR") by testing positive for drug use on multiple occasions. The district court revoked SR and imposed a special condition of SR that Hathorn challenges on appeal. We affirm.

         I.

         In 2010, Hathorn pleaded guilty of possession with intent to distribute five or more grams of cocaine base. The district court sentenced him to 106 months' imprisonment and 6 years' SR. As a result of changes to the Sentencing Guidelines that lowered the range for Hathorn's crime of conviction, his sentence was reduced to 74 months. See 18 U.S.C. § 3582(c)(2) (2012).

         In May 2016, Hathorn was released from prison and began his SR. The next month, he tested presumptively positive for marihuana. The district court modified his supervision to require that he "submit [his] person, residence, vehicle, and office to a search, conducted by the U.S. Probation Office at a reasonable time, and in a reasonable manner, based upon reasonable suspicion of contraband or evidence of a violation of a condition of release." The court explained that the "condition would act both as a deterrent for possible future non-compliance and a valuable tool for the probation office if warranted." Hathorn agreed to the modification.

         In October 2016, Hathorn again tested presumptively positive for drug use. Though he denied using cocaine, the lab results confirmed its presence. Hathorn agreed to a modification of SR that included participation in an in-patient drug treatment program.

         Nevertheless, in November 2017, Hathorn tested positive for cocaine and methamphetamine, initially denying use but, when confronted with lab confirmation, admitting it. In March 2018, he tested positive for cocaine and again denied use, but lab results confirmed otherwise. Based on these violations of the conditions of SR, the probation office petitioned the court for a warrant to arrest Hathorn.

         At his revocation hearing, Hathorn admitted the violations. When Hathorn's counsel asked the court to consider drug treatment in lieu of significant jail time, the probation officer replied that Hathorn "never once brought up any need for treatment, never once admitted to any of his positive drug tests until we got lab confirmation[, ] [and] [w]as not honest with [the probation office]." Therefore, "at th[at] point," the probation officer "fe[lt] like we need to control [Hathorn's] behavior."

         After hearing from Hathorn, his counsel, and the probation officer, the district court determined that Hathorn had violated the conditions of SR. It revoked SR and sentenced him to six months' imprisonment to be followed by 42 months' SR and imposed a special condition of SR requiring that he "shall submit his person, residence, computers, cellular telephones, all other electronics and vehicles to searches by the United States Probation Officers, at any time, to be conducted in a reasonable manner, under reasonable suspicion of contraband or illegal activity."

         Hathorn "object[ed] to the search condition with all the electronics" because it is "typically a special condition for sex offenders, and [he] was originally convicted of possession with intent to distribute." The court overruled the objection, explaining that

[t]he reason that th[e] special condition is being imposed is because [Hathorn] has a conviction for drug dealing. He has shown that he has a drug addiction-apparently a drug addiction, or certainly a drug abuse problem, and one of the best ways to discover using illegal drugs is to look at somebody's cell phone or communication device.

         On appeal, Hathorn challenges only the portion of the special condition of SR allowing probation officers to search his computers, cellular telephones, and all other electronics. He asserts that the district court abused its discretion in imposing the special condition because it is not (1) reasonably related to any of the 18 U.S.C. § 3553(a) factors, (2) narrowly tailored such that it does not involve a greater deprivation of liberty than is reasonably ...


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