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9th Circuit: Remand for misapplication of Sentencing Guidelines “minor role” adjustment; vague supervised release conditions vacated; limitation on district court authority to revoke expired supervised release term

United States v. Diaz, 884 F.3d 911 (9th Cir. 2018): Ninth Circuit remands for improper application of Sentencing Guidelines “minor role” adjustment

Once upon a time, teenage boys called “newsies” stood on street corners hawking newspapers. Each was a knowing and integral participants in the newspaper’s business, but each played only a “minor role” in the enterprise as a whole. Section 3B1.2(b) of the Sentencing Guidelines recommends that defendants who played such a “minor role” in a criminal enterprise should receive lesser sentences than more important players.

Can a drug courier be the drug-trafficking organization’s analog to the newsie? Alejandro Diaz thought so. After pleading guilty to importation of cocaine and heroin, Mr. Diaz argued that he was entitled to a minor-role adjustment in his sentence. The district refused to grant the adjustment. The Ninth Circuit held that this was error. The Ninth Circuit noted that to properly address the minor-role issue, the district court would have had to consider that Mr. Diaz was ignorant of the type and quantity of drugs concealed in the car he tried to drive across the border, that he knew only two other participants in the enterprise, and that he was to receive a set fee of $1,000 for his work and had no ownership interest or other stake in the outcome of the drug trafficking operation. Because the district court failed to take these pertinent facts into account, the Ninth Circuit vacated Mr. Diaz’s sentence and remanded the case for resentencing.

(Congratulations to Samuel L. Eilers, of the Federal Defenders of San Diego, Inc.)

United States v. Evans, 883 F.3d 1154 (9th Cir. 2018): Ninth Circuit finds supervised release conditions unconstitutionally vague

Anthony Evans was convicted of being a felon in possession of a firearm and ammunition. The district court sentenced him to 57 months of imprisonment followed by three years of supervised release. On appeal, he challenged both his prison sentence and several of the conditions of his supervised release, which he claimed were unconstitutionally vague. The Ninth Circuit affirmed the prison sentence, but vacated four of the supervised release conditions.

Although Mr. Evans had not raised his vagueness challenges below, the Ninth Circuit applied de novo review. The Ninth Circuit noted that Mr. Evans’ counsel had attempted to challenge the conditions below, but was denied permission to do so. Pursuant to Federal Rule of Criminal Procedure 51(b), Mr. Evans could not be prejudiced by his failure to raise his objections after having been denied the “opportunity” to do so.

One of Mr. Evans’ special conditions barred him from associating with members of a gang to which he had been connected. The Ninth Circuit found the condition acceptable in all but one respect: Its final sentence stated that the district court would “presume” that any contact with any gang “was for the purpose of participating in gang activities.” Because this sentence explicitly removed any requirement that the government prove Mr. Evans’ mens rea, it rendered the condition vague and overbroad.

The Ninth Circuit also found fault with three of the conditions designated as “standard” by the sentencing guidelines. One required Mr. Evans to support his dependents and “meet other family responsibilities.” The Ninth Circuit found this condition too vague to alert Mr. Evans to his responsibilities. Another condition required Mr. Evans to “work regularly” at a lawful occupation. The Ninth Circuit found the that the word “regularly” had no clear meaning in this context. Yet another condition required Mr. Evans to “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” The Ninth Circuit found that this condition was too vague to put Mr. Evans on notice of what was required of him. The court accordingly vacated these three “standard” conditions. The prospective significance of these holdings is limited by the fact that in 2016, the Sentencing Commission removed this vague language from the “standard” conditions. Indeed, the Ninth Circuit pointed to these modifications as supportive of its holdings. Judge Ikuta dissented, arguing that the struck conditions may have lacked “mathematical certainty” but were not unconstitutionally vague.

(Congratulations to Assistant Federal Public Defenders Shilpi Agarwal and Carmen Smarandoiu, and Federal Public Defender Steven G. Kalar, of San Francisco, California.)

United States v. Campbell, 883 F.3d 1148 (9th Cir. 2018): Ninth Circuit identifies limitation on district court’s authority to revoke expired term of supervised release

They say that, for a supervised releasee, breaking up with one’s probation officer is hard to do. Now Theresa Campbell knows, she knows that it’s true.

In 2014, Ms. Campbell pleaded guilty to mail fraud, and was sentenced to a term of imprisonment followed by a term of supervised release. Her supervised release term expired in mid-February of 2017. A week before the term expired, her probation officer filed a report charging several violations of her release conditions. Then, a month after the term expired, he filed another violation report, alleging numerous violations that were unrelated to any allegation raised before the supervised release term had expired. The district court nevertheless factored these late-alleged violations into its sentence for Ms. Campbell’s violations.

On appeal, Ms. Campbell alleged that the district court’s action breached 18 U.S.C. § 3583(i), which limits the district court’s “power” to revoke an expired term of supervised release to the “adjudication of matters arising before its expiration.” The Ninth Circuit applied de novo review to the question despite Ms. Campbell’s failure to raise the objection below, holding that it implicated the district court’s subject-matter jurisdiction. The Ninth Circuit scrutinized the statute’s language and the decisions of other circuits, and concluded that section 3583(i) limits a district court’s jurisdiction to matters that are “factually related to matters raised in a signed warrant or summons issued before expiration.” Thus, the late-alleged violations that were unrelated to matters raised in the pre-expiration report should not have been considered in the district court’s revocation decision.

(Congratulations to Caleb E. Mason and Scott L. Menger, of Brown White & Osborn LLP, Los Angeles, California.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)

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