*1 SCHROEDER, Before Judge. Chief
ORDER
Uрon a majority the vote of of nonre- regular judges court,1
cused active of this
it is ordered that this case be reheard
the en pursuant banc court to Circuit Rule
35-3. The three-judge panel opinion shall
not be precedent as cited or to this
court or any district the Ninth
Circuit, except to the extent adopted by
the en banc court. America,
UNITED STATES of
Plaintiff-Appellee,
Dean SOLTERO, Harlon Dean a/k/a Resinger,
Harlon Dean Harlon Socte
ro, Soctero, Dean Harlow Dean Har
low “Huero,” Soltero and Defendant-
Appellant.
No. 06-50257.
United States Court Appeals,
Ninth Circuit.
Oct. Judges Bybee Hawkins and are recused.
Sean K. Kennedy, Acting Federal Public Defender, Jonathan D. Libby, Deputy Defender, Federal Public Los Angeles, CA, for the defendant-appellant. Wong Debra Yang, United States Attor- ney, Wayne Gross, R. Assistant United Attorney, Gallivan, David R. Special Assistant United Attorney, Santa Ana, CA, for plaintiff-appellee. had been denied opportunity that the Moreover, counsel raised— him. Soltero’s the district court considered —several and PSR, objections to facts contained using the word “we” to frame with counsel NELSON, E. objections. EUGENE the defense’s Before: T.G. HAWKINS, JR.,*
SILER, Circuit objections, ruling After on these Judges. im- Soltero to 72 months court sentenced years followed three of su- prisonment, Partial Opinion; PER CURIAM During his term of su- pervised release. by Judge Partial Dissent Concurrence *4 release, court ordered Soltero pervised the HAWKINS. (1) “As directed (among things): to other PER CURIAM. Officer, ... by Probation all or the (“Soltero”) treating drug the costs of part [his] of appeals Harlon Soltero Dean dependency”; alcohol dependency following guilty his imposed the sentence and/or (3) (2) name”; “true legal use his in of a being possession a felon plea to any “associating refrain from with known in of 18 U.S.C. firearm violation gang or any member of criminal street the argues He that district 922(g)(1). ..., group specifically, disruptive that he had failing verify to by erred court (“PSR”) gang.”2 member of the Delhi street and known report presentence his read overruled Soltero’s ob- The district court attorney, his as well discussed it with had conditions. Soltero now jections these particular conditions by imposing thrеe as arguing that the district court’s appeals, part, affirm in release. We verify that he had read the PSR failure to part. and remand and vacate attorney requires it with his and discussed conditions resentencing I. and that the three improper. are single-count guilty to pleaded Soltero1 being him with a felon charging indictment II. firearm, in violation of 18 of a possession sentencing, both 922(g)(1). At Compliance A. District Court’s op- an given counsel were Soltero and his 32(i)(l)(A) Rule on the mat- to address the court
portunity 32(i)(1)(A) court requires a district Rule thе court did sentencing. Although ter of and the de “verify that the defendant he had to ask Soltero whether expressly and discussed attorney have read coun- fendant’s it with read the PSR discussed any addendum report and presentence sel, previous at a had been advised Soltero Fed.R.Crim.P. report.”3 this opportuni- that he would have hearing is, 32(i)(1)(A). as purpose rule’s This sentencing indicated to ty and never * Siler, Jr., reproduced in- as 2. The condition continued Eugene E. Senior The Honorable Judge for the Sixth Cir- States Circuit Part II.D. United fra cuit, sitting by designatiоn. 1., 1, 2002, the verification during the explained 3. Prior to December Soltero to the hearing legal birth in Rule change plea that his referenced requirement was 1994, 1, Resinger, although and, he 32(c)(3)(A) name is Dean Harlon December before Soltero, surname, stepfather’s his 32(a)(1)(A). has used Rule Part II.C. age two. See since infra out, correctly points Osborne,
Soltero “to (6th ensure opportunity the defendant Cir.2002); [has] Lockhart, read the and then report clarify dispute (4th Cir.1995). F.3d 88-89 Finally, personal information contained” therein. while repeatedly Soltero’s attorney used id., (1983) advisory committee’s notes the word “we” when discussing the de (“[T]he report failure disclose the (which objections fense’s PSR might imply defendant, require or to counsel to review that spoke Soltero), he for both him and report defendant, with the significantly we already have held that use of the word reduces the likelihood false state “we” defense counsel proves nothing, as discovered, ments will be as much of the “we” is a stylistic “common device used by content ordinarily of the [PSR] will lawyers.” Sustaita, United States v. counsel.”). outside knowledge Cir.1993). Because the argues that the district court vio district court directly neither asked Solte- lated this rule failing expressly verify ro if he had read the PSR and discussed it that he had read the PSR and discussed it with attorney nor relied on evidence with his attorney. same, indicating the we hold that inquiry court’s was inadequate under Rule
A specifi district court need not *5 32(i)(1)(A). cally inquire whether a defendant has read presentence report, United States v. Soltero inquiry believes our should end Lewis, (9th 243, 880 Cir.1989); F.2d 245 there and that we should automatically however, 32(a)(1)(A) for Rule to be satis remand his case for resentencing because, fied, sentencing judge must “reason “[g]iven the court’s failure to comply with ably rel[y] on evidence indicating that a 32, Rule we have no assurance that defendant has read the presentence report PSR was accurate.” we While acknowl counsel,” and discussed it with at id. edge that some adopted circuits have this Here, no such direct evidence exists. Al see, approach, Osborne, e.g., 291 F.3d at though Soltero was informed of the PSR’s 910-11, this circuit has consistently held еxistence when the district judge alluded that, it“if is clear prejudice that no result to it at change plea his hearing, merely ed” from a court’s failure to comply with informing a defendant a PSR would the 32(i)(1)(A), letter of Rule the error is be prepared and he would have a harmless, and resentencing is unnecessary. chance to read discuss it with his Davila-Escovedo, United States v. 36 F.3d attorney prove does not that these events (9th 840, Cir.1994); Sustaita, 844 1 F.3d at actually place. took United v. States Es 954. Although emphasize we that this er parza-Gonzalez, (5th 272, 268 F.3d 274 be, ror be, can avoided,” should “easily Cir.2001). Sustaita, 954, 1 F.3d at agree we still —as Additionally, although attorney Soltero’s do several other circuits4—that a harmless objected (and portions to of the PSR error analysis is appropriate this con least some objections of these likely were text. based on Soltero), discussions coun- objections sel’s not confirm Here, do that Soltero just as in Davila-Escove read the entire PSR do, and had a chance to Soltero has “made no affirmative alle point out any faсtual errors. gation United that he failed to report” read the Stevens, 4. United v. 239, 1519, (10th 223 Cir.1993); F.3d 1526 United States v. (3d Cir.2000); Lockhart, 242-46 Rodriguez-Luna, (7th 937 F.2d 1213 89; Rangel-Arreola, Cir.1991). Cir.2005).5 (9th Dupas, In we held F.3d at attorney. 36 it with and review plainly court did not err that the district has never important, Equally officer the by delegating probation to court or to the district identified—either whether the de authority to determine he would in the PSR court—any fact this funds to fendant has sufficient judge sentencing had the disputed have require such treatment and whether Sustai opportunity. him afforded Cf. (following Id. the Fifth Cir payment. do nоt see how ta, thus at 954. We in United States War cuit’s decision read the verify that Soltero a failure Cir.2002)). den, 365-66 resulted it with counsel discussed PSR and case, delegation in that approving In Accordingly, to Soltero. any prejudice noted: we 32(a)(1)(A) error court’s Rule the district §in provision of the context [T]he harmless.
was found from the context quite different provi- Condition The later §§ The Treatment and 3664. B. im- to the court’s generally sions relate is that the fol- contention next Soltero’s and restitution. position of sentences delegates impermissibly lowing condition contrast, is directed Section exclu- officer the court’s probation proba- functions of the to the primarily 18 U.S.C. 3672: authority under sive Moreover, the need to inter- tion office. Officer, the by the Probation As directed strictly so as reserve pret the statute of the part all or shall defendant the court is judicial functions to core drug defendant’s treating costs here; at issue does the condition weaker dependency alcohol dependency and/or officer the delegate during the contrаctor to the aftercare abuse treat- power to order substance *6 pursu- community supervision, period of Finally, § 3672 place. in the first ment § 3672. Defendant ant to 18 U.S.C. only generally to find the court requires pay- proof provide payment shall pay for an are available to that funds Offi- by the Probation ment as directed and, so, if allows offender’s treatment [Condition 6] cer. that such funds be court to direct the that, pursuant to 18 argues He 3572(d) § By contrast paid. allowed to only courts are 3664(f) require the court to expressly a as to defendant’s make determinations precise payment the specify or establish wheth payments and ability to make such schedule. be made. We payments should er such omitted). (citations Based on at 924 Id. of discre this claim for an abuse
review not abuse its court did the district Dupas, Williams, tion. United determi- delegating the cost discretion (9th Cir.2004). 1045, 1052 office.6 to the nation pay argues that the also precise issue addressed this We Soltero because should be vacated ment conditions Dupas, court, punishment is still thority delega- оf the recognize we reviewed the We 5. Although we Dupas at the time of plain error. the hands of the court for within tion in this employ an of discretion standard hearing abuse of the conditions on violations case, logic applicable. Dupas’s is nonetheless probation office does The supervised release. Soltero; it power punish have the assigning Although asserts that the dissent pay his for power to direct Soltero has the probation office the cost determination treatment, able. if he is delegаtion the au- was an unconstitutional Williams, ability to contribute to he has no the costs court’s discretion. of the substance abuse treatment. He as
serts that because the court found that he fine, ability to
did not have the agree. possible We itWhile find that he court also must does not have “Soltero” is the legal defendant’s “true ability the costs of court-or (as contends),8 government name” we argument dered treatment. This is with see no reason for the out merit. rulings The district court’s two ambiguous condition to remain when it any are payment harmonious since toward easily could be so clarified. govern The upon Soltero’s treatment will be based his object ment does not to defendant’s use of Bull, See United States v. ability pay. the surname during period “Soltero” (11th Cir.2000). 1275, 1279 release, and thus we remand to the district court for it to revise the name Legal The Name C. Condition require condition so as to Soltero to use “Soltero,” the last name rather than his The second condition disputes Soltero ambiguous legal “true name.” reads as follows: The shall not pos- defendant obtain or Relating D. Conditions license, any Security
sess driver’s Social Gang number, certificate, Association passport birth any any other form of identification in The final set of conditions Soltero name, than other the defendant’s true disputes reads as follows: name, legal prior without written approval Officer; of the Probation nor Condition 8: use,
shall any the defendant purpose any manner, or in any name other than The defendant shall not associate with legal his true name. any known member of criminal At sentencing, exрlained gang that his street or disruptive group as di- true legal technically surname rected Officer, specifi- Probation “Resinger,”7 but that he wanted to contin- cally, any known member of the Delhi *7 “Soltero,” ue using just the surname as he gang; street had been doing years since he was two old. Nevertheless, the district imposed court Condition 9: generic reproduced condition above. The defendant that, present shall not be argues
Soltero because the condition any could area unjustifiably be read to known as a require him сriminal street used, use a surname he had gang Delhi, never im- gathering of the as directed posing it an was abuse of the district Officer; the Probation ed.2004) This is because Soltero was born (defining "Dean "legal name” as the name and, Resinger'' Harlon although his mother "usu[ally] acquired through at birth or remarried a man with the surname "Soltero” order.”). court (at years when he was two old which time adopted Soltero proceeded this surname and government 8. As the sentencing, noted at forward), point to use it from that Soltero’s "Soltero” is the namе reflected in the defen- him, stepfather formally adopted never and records, history dant’s criminal Social Securi- officially changed Soltero never legal documentation, ty marriage and license. (8th Legal name. Dictionary See Black’s
725 (2) rehabilitation; “involves no fendant 10: Condition deprivation liberty of than is rea greater wear, display, shall The defendant sonably necessary” goals; to achieve these emblem, any insignia, possess use or (3) any pertinent with “is consistent bandana, scarf, hat, button, cap, bаdge, Sentencing policy statements issued or article of jewelry, paraphernalia, pursuant to 28 U.S.C. Commission connote affiliation clothing may which 994(a).” 3583(d); § 18 United with, membership gang. in the Delhi or (9th Sales, 732, v. 476 F.3d 735 States justified imposition its The district .2007). Cir by stating that “defendant these conditions presumably member and is gang is a Delhi Here, imposed upon the conditions insignia, com- the relevant familiar with were, respect, in all but one within Soltero places, perti- monly gathering known impose. discretion to the district court’s gang. members” of this nent impermissibly 9 and 10 are not Conditions argues nonetheless they specifically reference vague because “associate,” “any criminal street terms and the district court is gang,” the “Delhi group,” “any area gang,” “disruptive presume entitled to that Soltero—who has gang gathering criminal street known as a being gang— admitted to a member of this Delhi,” that connote and “items of the members, gang’s is familiar with the Delhi with, in the Delhi membership affiliation or places gathering, parapherna its and its impermissibly vague. United gang” are 768; Hugs, lia. see also Unit (9th 762, 768 Hugs, 384 F.3d Ross, 719, ed 722-23 Cir.2004) (“A re- [cоndition Cir.2007) (9th (upholding supervised re if it process due of law ‘violates lease] requiring defendant to re lease condition doing of an requires forbids or either associating frain from with known neo- that men of common vague act in terms so supremacist groups); United Nazi/white at its necessarily guess must intelligence (2d Schiff, F.2d States v. ” application.’ meaning and differ as to its Cir.1989) (condition forbidding parolee Loy, F.3d States v. (quoting United any group that “associat[ing] from Cir.2001))). (3d argues He also tax non-compliance with the advocates because that the conditions are overbroad overbroad). Moreover, vague laws” not including con- casual contact with others — criteria set forth the conditions meet the protected by the First Amendment— tacts 3583(d). Ross, 18 U.S.C. him in of these con- could render violation 721-22; Bolinger, 940 States v. ditions. Cir.1991) (“Probation prevent reversion conditions seek court’s discretion a district While lifestyle by crime-inducing into a former to set conditions *8 with old haunts and associ barring affect contact even when those conditions broad Bee, ates, may be though the activities rights, fundamental United States even (9th Cir.1998), legal.”). 1234 restric rights upon fundamental infringing tions 8 forbid portion The of Condition carefully,” States v.
are
“reviewed
Cir.1988).
“any
“associating]” with
from
ding Soltero
Terrigno,
374
any
gang
criminal street
member of
right to free
known
A restriction on a defendant’s
(1)
of the
...,
any known member
specifically,
if it:
“is
is nonetheless valid
association
As
permissible.
also
gang,”
Delhi street
is
goals
of deter
reasonably related to”
above,
street
the term “Delhi
rence,
explained
public,
de-
protection of the
and/оr
clear,
sufficiently
slightly
political protesters,
as is the
or a
gang”
group
sports
is
ambiguous
not unconstitution
celebrating
more
fans
after
champi
their team’s
—but
“criminal
ally
gang.”9
so—term
street
onship victory.
It
immediately ap
is not
not,
is
as
The term “associate”
also
parent to
government
us—and the
makes
argues,
impermissibly vague. The Su
explain
no effort
prohibiting
—how
preme Court has held that “incidental con
associating
Soltero from
with the latter
tacts”—such as those Soltero fears he
“disruptive groups”
“reasonably
three
inadvertently
would
punished
be
en
a permissible goal
related” to
of super
“association,”
gaging in—do not constitute
release,
vised
such
protection
as
of the
Freeman,
4, 5,
Arciniega v.
404 U.S.
92 public or Soltero’s own rehabilitation. See
(1971),
L.Ed.2d 126
S.Ct.
we
3583(d); Sales,
§
18 U.S.C.
that,
limitation,
hold
with this
“men of
Accordingly,
the substantial
en
intelligence”
guess
common
need not
croachment upon Soltero’s First Amend
meaning
of “association”
the context
rights
portion
ment
created
of Con
again,
portion
of Condition 8.10Once
that
dition 8
him
prohibiting
аssociating
from
of this condition meets the criteria set
“any
with
known
any
member of ...
dis
3583(d).
§
forth in
Boling
18 U.S.C.
See
ruptive group”
justifi
is without sufficient
er,
Condition 8 crosses the
how
condition
a probationer’s
restricts
freedom
ever, in prohibiting Soltero from associat
perform
otherwise lawful activities is
ing
“any
known member of
...
not dispositive of the
out,
reasonableness of the
disruptive group.”
points
As Soltero
if
condition. But
“disruptive group”
the term
has a
conditions are drawn so
broad
broadly
meaning
reasonably
they unnecessarily
and could
that
be inter
restrict
preted
only
to include not
a criminal gang,
they
otherwise lawful activities
imper
are
strike,
(internal
but
omitted)).11
also a labor union on
a throng missible.”
citations
Although
finding
that,
government
it
argues
is not crucial to our
11.The
read in con-
text,
meaning
gang”
of "criminal street
would
it
is clear
"disruptive
the term
apparent
be
average person,
we
note
group”
only
was intended to cover
those dis-
521(a)
that 18 U.S.C.
defines "criminal
ruptive groups
"gangs.”
that are also
How-
club,
gang”
ongoing group,
street
as "an
ever,
or-
only
prоsecuted
even if Soltero would
ganization,
per-
or
or more
association
for a
release violation if he associ-
sons ...
primary
that has as
its
[one] of
(and
disruptive gangs
ated with
not heif
asso-
purposes the commission of
[one] more of
arguably
ciated with
"disruptive
other
the criminal offenses described in [18 U.S.C.
”) which,
true,
groups
if
would make the
—
521(c)
...
the members
and]
of which en-
and, thus,
condition
unnecessary
redundant
gage,
engaged
past years,
or have
within the
government’s
for the
purposes
stated
—there
a cоntinuing
series of offenses described in
way
is no
for Soltero to know this from the
521(c)].”
[§
plain language.
condition’s
10. We
probationer
note that Soltero
violates the con-
A
put
must be
on clear notice
gang
(and
not)
dition if the
he
member
associates with
of what conduct will
will
constitute
member,
gang
violation,
is known to him to be a
thus
a rule that is of
undermining
argument
"expect-
that he is
particular
importance when the condition
every
ed to
gang currently operating
know of
constitutionally protected
seems to reaсh
con-
on
gangs
operating
streets ... as well as
duct.
Chapel,
See United States
*9
Ross,
472,
(9th
after
prison....”
Cir.1970).
his release from
overly
473-74
An
broad
722-23;
see also United States v.
condition like this one cannot be "saved”
Johnson,
272,
(2d Cir.2006)
446 F.3d
merely
government promises
because the
to
("Generally, supervised
provisions
release
are
enforce it in a narrow manner. See United
violations.”).
read
251,
to exclude
(3d Cir.2001)
inadvertent
Loy,
v.
237 F.3d
part
to
all or
of the costs of
quired
pay
for it
court
to the district
thus remand
We
treating
dependency?
his or her substance
8 from
of Condition
portion
this
to excise
release condi
supervised
set of
Soltero’s
rule,
sentencing
although
a
a
general
As
tions.
a
must determine “whether
defen
condition,
by a
and how
dant must abide
and REMANDED
part
in
AFFIRMED
subjected
... a defendant will
in part.
condition,”
may “delegate to the
the court
the details of where and
probation officer
HAWKINS,
Judge, concurring
Circuit
will be satisfied.” Ste
when the condition
in
dissenting
part:
in
and
part
Although we
Warden,
In
v.
United States
release condition United
cal
(5th
(9th
Cir.2002), the Fifth Circuit consid-
Cir. 363
would ability to compute the defendant’s
would pay the defendant to require and then amount) up costs
treatment —decid- a should be forced
ing whether defendant (and, if for rehabilitative treatment extent)
so, to what is a decision that and, thus, Article III
punitive nature judge, it not a
requires to be made States, parte officer. Ex 41-42, 72; Stephens, at 37 S.Ct. U.S. I with the sympathize 880-81. an delegate
district court’s inclination to task to an administrative
administrative a defen-
agency whose information about superior
dant’s financial situation own; however, inway
to its which the sought
district court to achieve that end delegates
here too much. America,
UNITED STATES of
Plaintiff-Appellee, SALCIDO, Defendant-
Richard
Appellant.
No. 06-10546. Appeals,
United States Court of
Ninth Circuit.
Argued Aug. and Submitted
Filed Oct.