United States v. Anthony Evans (2018)

We “generally review conditions of supervised release for abuse of discretion.” United States v. Evans, 883 F.3d 1154, 1159 (9th Cir. 2018).

Substantive reasonableness requires that the condition is “reasonably related to the goal[s] of deterrence, protection of the public, or rehabilitation of the offender” and that the condition not “infringe[] more on the offender’s liberty than is reasonably necessary to accomplish these statutory goals.” United States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (first alteration in original) (citations omitted); 18 U.S.C. § 3583 (d)(2)). 2 Under United States v. Evans…

“A condition of supervised release violates due process ‘if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’” United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018), quoting United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004).

“A condition of supervised release violates due process ‘if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’” United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018), quoting United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004).

Id. 4 The pornography prohibition condition is not overbroad, United States v. Daniels, 541 F.3d 915, 927 (9th Cir. 2008), but it is vague as to the phrase “that would compromise your sex offense-specific treatment.” Because people “of common intelligence must necessarily guess at its meaning” and may “differ as to its application,” United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018), we vacate and remand to the district court to modify the condition.

However, this language is not “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” Evans, 883 F.3d at 1160 (citation and quotation marks omitted).

Id. at 1159.

United States v. Evans, 883 F.3d 1154, 1163 (9th Cir. 2018).

The court may not reimpose standard conditions 4, 5, and 13 from the 2012 judgment, however, unless it modifies them to comport with United States v. 2 23-1930 Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018).

A condition of supervised release violates due process if it “either forbids or requires the doing of an act in terms so 3 vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018) (internal quotations omitted).

“A condition of supervised release violates due process ‘if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’” United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018) (quoting United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004)).

Thus, in that context, we cited with approval the Ninth Circuit’s 2 view that “[a] condition barring contact with an organization may be substantively 3 reasonable even if the defendant denies membership.” Id. (alteration in original) 4 (quoting United States v. Evans, 883 F.3d 1154, 1161 (9th Cir. 2018)). 5 In this case, however, Sims has consistently denied any affiliation with the 6 Jungle Junkies or any other criminal gang, and the PSR provides nothing but a 7 conclusory…

The “computer ban” relied on a lengthy statutory definition of “computer,” which required that people “necessarily guess at its meaning and differ as to its application.” Id. at 588– 89 (quoting United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018)).

U.S. Sent’g Comm’n, Amendments to the Sentencing Guidelines 49 (April 28, 2016), https://www.ussc.gov/sites/ default/files/pdf/amendment-process/reader-friendly-amendments/20160428_RF.pdf (last visited April 14, 2022). 2 But see United States v. Boles, 914 F.3d 95, 111-12 (2d Cir. 2019) (vacating sentence imposing current risk-notification condition and remanding to district court to clarify scope); United States v. Cabral, 926 F.3d 687, 697-98 (10th Cir. 2019) (rejecting cu…

We previously held those conditions to be unconstitutionally vague in United States v. Evans, 883 F.3d 1154, 1162 (9th Cir. 2018).

The district court imposed a number of supervised-release conditions, including that Pizarro must “meet other family responsibilities,” “work regularly at a lawful occupation,” and “notify third parties of risks that may be occasioned by [his] criminal record or personal history or characteristics.” The parties agree that these conditions are unconstitutionally vague and therefore plainly erroneous under United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018).

We disagree. “[W]e review for reasonableness the district court’s decision to sentence [Gibson] to a lifetime term of supervised release,” see United States v. Cope, 527 F.3d 944, 952 (9th Cir. 2008), and we review de novo claims that conditions violate the Constitution, United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018).

Although the Robertson court reviewed the issue for plain error and noted this was “a close question and some circuits have refused to uphold similar risk conditions, see United States v. Evans, 883 F.3d 1154, 1163-64 (9th Cir. 2018),” this panel is bound by the holding that “the scope of this condition can be ascertained with sufficient ease.” Id.

The government further concedes that, in this case, special condition 13 is impermissibly vague as to which “victims” the district court intended to include in the condition.1 See United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018).

See United States v. Blinkinsop, 606 F.3d 1110, 1121 (9th Cir. 2010); United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018).

A condition of supervised release is void for vagueness when the standard for determining whether conduct is illegal is itself “so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.” United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018).

Gomez challenges as unconstitutionally vague the portion of one condition requiring that he “not be present in (or frequent) places where alcohol is the main item of sale.” “A condition of supervised release violates due process ‘if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’” United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018) (quoting Uni…

The condition mirrors the amended language of U.S.S.G. § 5D1.3(c)(12), and does not include the language we found to be unconstitutionally vague in United States v. Evans, 883 F.3d 1154, 1163-64 (9th Cir.), cert. denied, 139 S. Ct. 133 (2018) (discussing with approval the amended language of U.S.S.G. § 5D1.3(c)(12)).

Although Marshall subsequently denied gang membership, “[a] condition barring contact with an organization may be substantively reasonable even if the defendant denies membership.” United States v. Evans, 883 F.3d 1154, 1161 (9th Cir. 2018).

Although this is a close question and some circuits have refused to uphold similar risk conditions, see United States v. Evans, 883 F.3d 1154, 1163-64 (9th Cir. 2018), the fact that this is a close question means that the error is not plain.

Our decision in United States v. Evans, 883 F.3d. 1154, 1162-64 (9th 3 Cir. 2018), held that these conditions are unconstitutionally vague.

The conditions are neither overbroad nor vague, see, e.g., United States v. Soltero, 510 F.3d 858, 865 (9th Cir. 2007) (per curiam), and are “consistent with well- established jurisprudence under which we presume prohibited criminal acts require an element of mens rea.” United States v. Evans, 883 F.3d 1154, 1161 (9th Cir. 2018) (quoting United States v. Vega, 545 F.3d 743, 750 (9th Cir. 2008)), cert. denied, 139 S. Ct. 133 (2018).

The government concedes, and we agree, that standard supervised release conditions 4, 5, and 13 in the written judgment are unconstitutionally vague, see United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir.), cert. denied, 139 S. Ct. 133 (2018), and that condition 4, which requires Reynaga to “support his . . . dependents,” should be stricken because Reynaga has no dependents.

The government concedes that three of Ramirez-Nunez’s supervised- release conditions – conditions 5, 6 and 14 – are unconstitutionally vague under United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018).

United States v. Evans, 883 F.3d 1154, 1162-63 (9th Cir. 2018).

Durnell and the government agree that Standard Conditions 5, 6, and 14 are unconstitutionally vague under this court’s holding in United States v. Evans, 883 F.3d 1154, 1162 (9th Cir. 2018).

Following our decision in United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018), cert. denied, 139 S. Ct. 133 (2018), we vacate those conditions and remand for the district court to cure the constitutional deficiencies.

Id. at 1160 (citation omitted).

We held in United States v. Evans, 883 F.3d 1154, 1157 (9th Cir. 2018), petition for cert. filed, ___ U.S.L.W. ___ (U.S. May 29, 2018) (No. 17-9208), that an identically worded condition was unconstitutionally vague.

We held in United States v. Evans, 883 F.3d 1154, 1157 (9th Cir. 2018), petition for cert. filed, __U.S.L.W. __ (U.S. May 29, 2018) (No. 17-9208), that an identically worded condition was unconstitutionally vague.

For example, in United States v. Evans, 883 F3d 1154, 1164 (9th Cir 2018), the court stated, “A proba- tioner must be put on clear notice of what conduct will (and will not) constitute a supervised release violation.” See also United States v. Simmons, 343 F3d 72, 81 (2d Cir 2003) (holding that 11 We have never foreclosed a state constitutional basis for a “fair warning” requirement.

For example, in United States v. Evans, 883 F3d 1154, 1164 (9th Cir 2018), the court stated, “A proba- tioner must be put on clear notice of what conduct will (and will not) constitute a supervised release violation.” See also United States v. Simmons, 343 F3d 72, 81 (2d Cir 2003) (holding that 11 We have never foreclosed a state constitutional basis for a “fair warning” requirement.

For example, in United States v. Evans, 883 F3d 1154, 1164 (9th Cir 2018), the court stated, “A proba- tioner must be put on clear notice of what conduct will (and will not) constitute a supervised release violation.” See also United States v. Simmons, 343 F3d 72, 81 (2d Cir 2003) (holding that 11 We have never foreclosed a state constitutional basis for a “fair warning” requirement.

Stated differently, provisions prohibiting criminal acts are presumed to contain a mens rea element ( see United States v Evans , 883 F3d 1154, 1161 [9th Cir]; United States v Vega , 545 F3d 743, 750 [9th Cir]).

See United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018) (a term violates due process “if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application” (internal quotation marks omitted)).

See United States v. Evans, 883 F.3d 1154 , 1164– 65 (9th Cir. 2018); see also FED.

See United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018); see also Watson, 582 F.3d at 977 (appeal waiver does not bar a constitutional challenge to a supervised release condition).

See United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018).

See United States v. Evans, 883 F.3d 1154 , 1163–64 (9th Cir. 2018); United States v. Magdirila, 962 F.3d 1152 , 1158–59 (9th Cir. 2020). 4 However, both of those opinions—and several subsequent unpublished dispositions—discussed the current Risk Notification Condition favorably.

See United States v. Evans, 883 F.3d 1154, 1164 (9th Cir. 2018) (finding the condition constitutional); United States v. Oseguera, 793 F. App’x 579 , 581 (9th Cir. 2020). 9.

See United States v. Evans, 883 F.3d 1154 , 1162–63 (9th Cir. 2018).

See United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir.), cert. denied, 139 S. Ct. 133 (2018).

See United States v. Evans, 883 F.3d 1154, 1162 (9th Cir. 2018).

See United States v. Evans, 883 F.3d 1154 , 1163–64 (9th Cir.), cert. denied, 139 S. Ct. 133 (2018) (holding that a different risk-notification condition was unconstitutionally vague but indicating that the standard condition recommended in U.S.S.G. § 5D1.3(c)(12) clarifies some of those ambiguities).

See United States v. Evans, 883 F.3d 1154 , 1162- 27 1164 (9th Cir. 2018). 28 1 III.