UNITED STATES OF AMERICA, Plaintiff-Appellee, v. OLIVIA REYES, Defendant-Appellant.
No. 20-50016
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
November 26, 2021
Before: Stephen A. Higginson, Andrew D. Hurwitz, and Daniel P. Collins, Circuit Judges. Opinion by Judge Collins; Concurrence by Judge Higginson
D.C. No. 3:19-cr-02272-LAB-1. Appeal from the United States District Court for the Southern District of California. Larry A. Burns, District Judge, Presiding. Argued and Submitted March 3, 2021, Pasadena, California.
FOR PUBLICATION
*SUMMARY**
Criminal
The panel affirmed in part and vacated in part a sentence, and remanded, in a case in which the defendant pleaded guilty to unlawful importation of methamphetamine and heroin.
The defendant‘s principal contention was that the district court erred by failing to give her advance notice before imposing a special condition of supervised release that requires her to submit to suspicionless searches by any law enforcement officer. The defendant asserted that this contravened United States v. Wise, 391 F.3d 1027 (9th Cir. 2004), which held that, “[w]here a condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed.” The Government contended that Wise was effectively overruled by the Supreme Court in Irizarry v. United States, 553 U.S. 708 (2008), which held that, before imposing a custodial sentence, a district court is not required to give advance notice that it is considering varying upwards from the applicable sentencing range under the Sentencing Guidelines. Rejecting the Government‘s contention that Reyes did not adequately preserve her objection and that the panel should therefore review the lack-of-notice issue only for plain error, the panel considered the issue de novo. Reviewing the relevant caselaw leading up to Wise, as well as the later decision in Irizarry, the panel concluded that Wise is easily reconciled with Irizarry, and remains binding. The panel held that the district court therefore erred by failing to give notice that it was contemplating imposing its broad search condition prior to imposing that condition in its oral pronouncement of sentence.
Reviewing for plain error the defendant‘s contention that the district court failed to explain at sentencing why it rejected her request for a downward departure or a variance, the panel found no basis to conclude that an obvious and prejudicial error occurred, much less one that seriously affected the fairness, integrity, or public reputation of judicial proceedings. The panel therefore affirmed the custodial portion of her sentence.
Because vacating at least the suspicionless-search condition based on the Wise error alters the overall package of conditions that the district court thought were warranted to ensure that the defendant was adequately supervised after her release from incarceration, the panel exercised its discretion to vacate the entirety of the supervised release portion of her sentence and to remand to the district court for the limited purpose of imposing a new supervised release sentence.
Judge Higginson concurred in the judgment, agreeing that the sentence must be vacated because numerous supervised release conditions which appeared in the defendant‘s written judgment were not pronounced orally at sentencing. He would realign this aspect of sentencing with the court‘s duty under
COUNSEL
Doug Keller (argued), Law Office of Doug Keller, San Diego, California, for Defendant-Appellant.
David Chu (argued), Assistant United States Attorney; Daniel Earl Zipp, Chief, Appellate Section, Criminal Division; Robert S. Brewer, Jr., United States Attorney; United States Attorney‘s Office, San Diego, California, for Plaintiff-Appellee.
OPINION
COLLINS, Circuit Judge:
Olivia Reyes appeals the sentence imposed by the district court after she pleaded guilty to unlawful importation of methamphetamine and heroin. Her principal contention is that the district court erred by failing to give her advance notice before imposing a special condition of supervised release that requires her to submit to suspicionless searches by any law enforcement officer. Reyes asserts that this contravened our decision in United States v. Wise, 391 F.3d 1027 (9th Cir. 2004), which held that, “[w]here a condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed.” Id. at 1033. The Government contends that Wise was effectively overruled by the Supreme Court in Irizarry v. United States, 553 U.S. 708 (2008), which held that, before imposing a custodial sentence, a district court is not
I
Pursuant to a written plea agreement, Reyes pleaded guilty to a two-count information charging her with (1) importation of 50.4 kilograms of a mixture or substance containing a detectable amount of methamphetamine, in violation of
At Reyes‘s sentencing hearing, the district court calculated a Sentencing Guidelines range of 151–188 months, which it considered “too high for this offense” after considering the various sentencing factors set forth in
In pronouncing the sentence, the district court orally recited several case-specific conditions of supervised release. In doing so, the court generally followed some of the special conditions that had been recommended by the Probation Office in its presentence report (“PSR“). As to one of those conditions, however, the district court‘s oral sentence made a significant change, without prior warning to the parties, from what the PSR had suggested. Specifically, in lieu of the PSR‘s proposed condition that Reyes submit to searches of her “person, property, house, residence, vehicle, papers, computers,” other electronic devices, or “office” by a “United States probation officer” upon reasonable suspicion of a violation of her supervised release conditions, the court instead required Reyes to submit “to a search of her person, her property, her residence, and her vehicle by the probation officer or by any peace officer, state, federal, or local.” The court explained that “[t]he stealthy conduct involved here justifies an expansion of the search conditions to include police, not just the probation officer.” After Reyes‘s counsel objected to that condition in the already-pronounced sentence, the court cut him off and explained why the court had imposed it. The court reiterated that Reyes‘s offense behavior had involved “stealthy, sneaky conduct,” and the court added that, in light of the PSR‘s recounting of Reyes‘s drug-related text messages, her drug trafficking here “was not a one-off situation.” The court further noted that Reyes had a prior state court conviction for child endangerment arising from allowing her child to be in a house from which another person sold drugs. Those reasons, the court concluded, “call for greater restrictions on [Reyes‘s] Fourth Amendment rights while she‘s on supervised release.”
Submit to a search of person, property, house, residence, office, vehicle, papers, cellular phone, computer or other electronic communication or data storage devices or media effects, conducted by a United States Probation Officer or any federal, state, or local law enforcement officer, at any time with or without a warrant, and with or without reasonable suspicion. Failure to submit to such a search may be grounds for revocation; you shall warn any other residents that the premises may be subject to searches pursuant to this condition.
There were also differences in wording in the supervised released conditions involving Reyes‘s ability to travel to Mexico, her participation in a mental health treatment program, and her maintaining full-time employment or education.
Reyes timely appealed. We have jurisdiction pursuant to
II
In United States v. Wise, 391 F.3d 1027 (9th Cir. 2004), we held that when a particular “condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed, so that counsel and the defendant will have the opportunity to address personally its appropriateness.” Id. at 1033. Here, the district court‘s search condition was not on the list of mandatory or standard conditions in
Moreover, at no time prior to the imposition of sentence did the district court provide any notice to the parties that it was considering a substantial modification and expansion of the search condition that the PSR had proposed. That point is significant, because we further specifically held in Wise that some notice prior to imposing sentence is required:
It may be enough in many cases for the judge to mention orally at the sentencing hearing that he is contemplating a condition, in case either party wishes to comment or request a continuance. It is not enough notice, however, first to impose the sentence, and then to invite counsel to comment, at least where counsel objects as occurred here. That is no notice at all. Talking a judge out of a decision he has already made is a different and harder task than persuading him not to make it. Also, such an approach prevents negotiation of a condition more precisely tailored to the legitimate interests of both sides.
391 F.3d at 1033. Wise would seemingly require us to find that the district court‘s lack of advance notice was erroneous and to “vacate” at least this condition and to “remand on account of th[at] lack of notice.” Id.
A
First, the Government argues that Reyes did not adequately preserve below her objection to the lack of advance notice and that she cannot satisfy the more demanding showing required by the plain-error doctrine. See
The Government relies on United States v. Watson, 582 F.3d 974 (9th Cir. 2009), in which the defendant similarly challenged on appeal a special condition of supervised release that was never mentioned until it was actually imposed. Id. at 981. In determining what standard of review to apply, we stated that, “[w]hile Watson protested the actual condition at sentencing, he did not object on the grounds of insufficient notice, so we review that claim for plain error.” Id. (emphasis added). But in Watson, immediately after imposing the condition, the district court engaged in an extended colloquy with defense counsel during which that counsel had a full and fair opportunity to raise any grounds of objection. Id. at 979–80 (reproducing that colloquy). By contrast, no such opportunity was afforded to Reyes‘s counsel. The district court instead cut off counsel in mid-sentence, explained its reasoning, and then concluded with the remark that “Your objection is noted.”1
In view of the district court‘s interruption of defense counsel‘s objection, the court‘s ensuing considered explanation, and its concluding definitive comment that counsel‘s “objection is noted,” we do not think that counsel was afforded “any real opportunity to object” further. See United States v. Blueford, 312 F.3d 962, 974 (9th Cir. 2002). We therefore reject the Government‘s suggestion that we should review the lack-of-notice issue only for plain error, and we instead consider that issue de novo.
B
The Government alternatively contends that our decision in Wise was effectively overruled by the Supreme Court‘s subsequent decision in Irizarry v. United States, 553 U.S. 708 (2008), and that Wise is therefore no longer binding. In assessing this contention, we begin by reviewing the relevant caselaw leading up to our decision in Wise, as well as the later decision in Irizarry. That review demonstrates that Wise is easily reconciled with Irizarry, and that Wise remains binding. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (holding that a three-judge panel can disregard otherwise binding Ninth Circuit precedent only if an intervening Supreme Court or en banc decision “undercut[s] the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable“).
1
In Burns v. United States, 501 U.S. 129 (1991), the Supreme Court addressed “whether a district court may depart upward from the sentencing range established by the Sentencing Guidelines without first notifying the parties that it intends to depart.” Id. at 131. The Court noted that “[i]n the ordinary case, the presentence report or the Government‘s own recommendation will notify the defendant that an upward departure will be at issue and of the facts that allegedly support such a departure.” Id. at 135. Burns, by contrast, was “the extraordinary case in which the district court, on its own initiative and contrary to the expectations of both the defendant and the Government, decide[d] that the factual and legal predicates” for an upward departure were satisfied. Id. Noting that the then-existing version of
The Burns Court emphasized that, given the critical role that departures played under the then-mandatory Sentencing Guidelines, a lack of notice of an upward departure would “render[] meaningless the parties’ express right ‘to comment upon . . . matters relating to the appropriate sentence.‘” 501 U.S. at 136 (quoting
We distinguished Burns in United States v. Lopez, 258 F.3d 1053 (9th Cir. 2001), which involved a district court‘s sua sponte decision to require, as a condition of supervised release, that the defendant participate in a mental health treatment program. Id. at 1055–56. We observed that, although technically a “special” condition of supervised release, this particular condition was expressly “contemplated by the guidelines.” Id. at 1055. That is,
We then, in turn, distinguished Lopez in our decision in Wise. In the latter case, the district court had sua sponte imposed, without advance notice, a condition of supervised release restricting the defendant‘s contact with children, including a specific restriction on her “custody and contact” with her five-year-old son. Wise, 391 F.3d at 1030–31. We concluded that, because this condition was not one of the special conditions suggested in the Guidelines, the notice issue presented in Wise fell “on the Burns rather than the Lopez side of the line.” 391 F.3d at 1032. Because neither the PSR nor the Government had suggested such a special condition and it was “not on the list of mandatory or discretionary conditions in the sentencing guidelines,” we held that “notice is required before it is imposed, so that counsel and the defendant will have the opportunity to address personally its appropriateness.” Id. at 1033.
Thereafter, in Irizarry, the Supreme Court addressed the distinct question whether a district court at sentencing is required to give notice that it is contemplating a “variance” from the Sentencing Guidelines. See 553 U.S. at 709–10. After the “mandatory features of the Guidelines” were “invalidated” in United States v. Booker, 543 U.S. 220 (2005), the
rule for “departure[s]” does “not apply to
Unlike in Burns, in which a court-initiated departure undermined the “expectation” that “a criminal defendant would receive a sentence within the presumptively applicable Guidelines range,” the post-Booker sentencing regime affords judges substantial discretion in applying the
2
Against this backdrop, we have little difficulty in concluding that Wise remains good law after Irizarry.
As an initial matter, a key consideration on which Irizarry relied—the substantial change wrought by Booker‘s elimination of the statutory mandate in
Moreover, the sort of custodial sentencing issue addressed in Irizarry differs in an additional critical respect from the crafting of special supervised release conditions. By its nature, the selection of a fixed term of incarceration is largely a unidimensional decision—considering the
Accordingly, the entire rationale for Irizarry‘s conclusion—that, post-Booker, all parties know that they need to be prepared at sentencing to advocate for a specific number of months within a highly discretionary unidimensional numerical range—has no application to a situation in which the court is contemplating a special condition that is not mentioned in the Guidelines and that no party nor the PSR has proposed. In the distinct situation of special conditions of supervised release, it remains difficult to see how the parties can be expected to “comment” on this “matter[] relating to an appropriate sentence,” see
Because Wise can be readily reconciled with Irizarry, it remains binding. See Miller, 335 F.3d at 899–900. Accordingly, Wise controls here. The district court therefore erred by failing to give notice that it was contemplating imposing its broad search condition prior to imposing that condition in its oral pronouncement of sentence. We therefore must vacate at least that portion of Reyes‘s sentence.
III
Reyes raises only one challenge to the custodial portion of her sentence—she contends that the district court failed to explain at sentencing why it rejected her request for a downward departure under United States v. Mendoza, 121 F.3d 510 (9th Cir. 1997), or for a variance on similar grounds. In Mendoza, we held that, when the facts indicate that the defendant “had no control over, or knowledge of, the purity of the [drugs] that he [or she] delivered,” a district court has authority to
A “district court need not tick off each of the
IV
Based on the Wise error, we must at least vacate the special condition of supervised release requiring Reyes to submit to suspicionless searches by any law enforcement agency. Because that alters the overall package of conditions that the district court thought were warranted to ensure that Reyes was adequately supervised after her release from incarceration, we exercise our discretion to vacate the entirety of the supervised release portion of her sentence and to remand to the district court for the limited purpose of imposing a new supervised release sentence.4 We affirm, however, the district court‘s imposition of concurrent sentences of 78 months imprisonment on both counts. See United States v. Doe, 488 F.3d 1154, 1163 (9th Cir. 2007) (limited remand of only the supervised release portion of the sentence is an appropriate remedy for Wise error).
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
HIGGINSON, Circuit Judge, concurring in the judgment:
I concur in the judgment, agreeing that Reyes’ sentence must be vacated because numerous supervised release conditions
Although the most intrusive supervised release condition that was broadened in the written judgment is a near-limitless provision requiring Reyes to submit to searches “at any time . . . and without reasonable suspicion,” other restrictions—including work, travel, and mental health treatment requirements—similarly were not pronounced orally yet implicate the range of significant interests that supervised release terms impose as well as protect.
Above all, supervised release facilitates defendants’ successful and safe re-entry into society after imprisonment, provide defendants with rehabilitation and treatment opportunities, and enable victim restitution and security. Correspondingly, failure to adhere to a release condition can result in revocation, re-imprisonment, and even re-prosecution. See
As other courts of appeal perceive, however, the Sentencing Guidelines subdivide further, offering policy statements which recommend specific discretionary conditions as “standard” or “special” or “additional.” These sub-designations are distinct from Congress‘s binary treatment of release conditions as either required or discretionary and courts err when they allow insertion of “special” or “standard” restrictions into written judgments for the first time—hence without oral pronouncement, much less courts’ statutory duty to confirm relatedness and least restrictiveness upon objection on the theory that these conditions are “contemplated,” “implied,” “suggested,” or “recommended” in the Guidelines sufficiently for defendants to be deemed on notice that they might appear later in written judgments.
I am persuaded by the courts that have realigned this crucial aspect of criminal sentencing with the above-mentioned statutory imperative by requiring oral articulation at sentencing of any supervised release condition that is discretionary—i.e. not required by law—regardless of whether a Sentencing Commission policy statement classifies the condition as “standard” or “special.” See, e.g. United States v. Kappes, 782 F.3d 828, 846 (7th Cir. 2015) (“[A] condition‘s label in the guidelines is ultimately irrelevant. All discretionary conditions, whether standard, special or of the judge‘s own invention, require findings.“); United States v. Anstice, 930 F.3d 907 (7th Cir. 2019); United States v. Diggles, 957 F.3d 551, 557–559 (5th Cir. 2020) (en banc); United States v. Rogers, 961 F.3d 291 (4th Cir. 2020); United States v. Boyd, 5 F.4th 550, 559–560 (4th Cir. 2021).
Adopting
With these observations, I respectfully concur in the judgment.
Notes
The full exchange, which occurred at the very end of the hearing transcript, is as follows:
[DEFENSE COUNSEL]: And just for the record, I do want to object to the full Fourth Amendment waiver. I think it‘s—it would be a lot more in line with this case that she submit to a search by a probation officer at a reasonable time—
THE COURT: I disagree with that for two reasons. One, even acknowledging that she wasn‘t the one dealing drugs out of the house, she shouldn‘t have been there with a two-year-old. She should have sized up what was going on and left, number one.
Number two, the record here that I‘ve accepted, unobjected to, was that—as I found, that the defendant—this was not a one-off situation. She was involved in in drug trafficking, and making arrangements with others. And the texts reveal that. And that was over a period of time. Those circumstances involve stealthy, sneaky conduct, trying to keep things away from cops and police, so they don‘t know, including expressly, you know, changing language, and changing the reasons why we‘re coming in, discussing stealthy measures.
All of those things, I think, call for greater restrictions on her Fourth Amendment rights while she‘s on supervised release. That‘s my response. Your objection is noted.
Interestingly, the Napier decision describes appellate authority to remand for resentencing only when an oral sentence has ambiguity. 463 F.3d at 1043–44. Because ambiguity existed in Napier, “standard” and “nonstandard” conditions alike were vacated and remanded for resentencing. Id. at 1044. Accordingly, the court‘s overbroad assertion that “imposition of . . . mandatory and standard conditions is deemed to be implicit in an oral sentence imposing supervised release,” id. at 1043 (emphasis added), appears to me to be dicta. See Pierre N. Leval, Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L. REV. 1249, 1256 (2006). To my knowledge, this court has never since, in a published opinion, conflated statutorily required conditions with discretionary ones, implying that both are “implicit” in oral pronouncements, even though it has applied Napier‘s overbroad dicta determinatively in dozens of unpublished cases. I mention this not to dissent from the instant remand for partial resentencing that we order here, which has separate, binding precedent as authority, see United States v. Doe, 488 F.3d 1154, 1163 (9th Cir. 2007), but instead to suggest gently that this court has been free to realign caselaw withThat rule provides as follows:
Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party‘s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.