Reimposition of supervised release conditions affirmed

United States v. Henry, 979 F.3d 1265 (10th Cir. November 10, 2020): A defense challenge to supervised release conditions fails, providing a lesson in preservation and demonstrating the limited value of challenging reimposed conditions of release not objected to at the original sentencing. A district court in Michigan sentenced Henry to 100 months in prison and 10 years of supervised release. The release conditions included the probation office’s advanced approval of any employment, the completion of a substance abuse program and no alcohol use. Two months into his supervision term, which had been transferred to Colorado, Henry disappeared. When he was found, the court held a revocation hearing. Henry objected to the court reimposing conditions that his employment be approved in advance by the probation office and that he participate in and successfully complete a drug abuse program. The court said that since those conditions were imposed by the sentencing court, it could not change them. On appeal, Henry argued that the district court incorrectly concluded it was required to reimpose the employment approval and substance abuse program conditions. If the court was wrong, then he was entitled to a remand for the district court to consider, according to 18 U.S.C. § 3583(d), whether those conditions are appropriate. The lesson in preservation: The panel reviewed these issues for plain error. It acknowledged Henry objected to the court imposing these two special conditions again. However, “he did not object to the district court’s failure to consider the factors required by § 3583(d) when it ruled on the objections.” To avoid plain error review Henry was expected to make the “specific procedural objection” that the district court did not independently assess whether those previously imposed conditions were necessary. The limited value of challenging reimposed conditions under the plain error standard: The panel acknowledged that the district court did not give individualized reasons for reimposing the employment approval and drug abuse program special conditions. The panel noted that the court’s comments that Henry created a risk to the community did not directly address any of the challenged conditions. Still, even if the court did err it was not plain and it is improbable that the outcome would have been different without the error. The panel reasoned that the conditions originally imposed - and to which Henry did not object at the original sentencing - would have remained in effect had Henry not absconded. He shouldn’t be allowed to benefit from violating supervised release by having those conditions removed. Besides there were valid grounds for these conditions: Henry was never consistently employed and he admitted to abusing alcohol and drugs before he was arrested.