United States v. Soulemane Barry ( 2018 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 18-1496
_____________
UNITED STATES OF AMERICA
v.
SOULEMANE BARRY,
Appellant
_____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
District Court No. 2-14-cr-00272-002
District Judge: The Honorable Timothy J. Savage
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 10, 2018
Before: SMITH, Chief Judge, McKEE, and FISHER, Circuit Judges
(Filed: December 24, 2018)
_____________________
OPINION *
_____________________
SMITH, Chief Judge.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
After Soulemane Barry had his supervised release revoked, the District Court
reimposed supervised-release conditions requiring that he “not frequent places where
controlled substances are illegally sold [or] used” and not “associate” with criminals. On
appeal, Barry raises for the first time his contention that these two conditions are
unconstitutionally vague and bolsters his argument with Seventh Circuit decisions
reaching the same conclusion. But this Court has held that association supervised-release
conditions are constitutional, and the Ninth and Tenth Circuits have held that both
conditions are constitutional. Because of the circuit split, any mistake by the District
Court in imposing either condition is not plain error. We will therefore affirm. 1
I.
For about two years, Barry used fraudulent credit cards, debit cards, and gift cards
to make retail purchases. After getting caught, he pleaded guilty to using and attempting
to use “counterfeit access devices” in violation of 18 U.S.C. § 1029(a)(1), (b)(1),
possessing 15 or more counterfeit access devices in violation of 18 U.S.C. § 1029(a)(3),
and conspiring to commit access device fraud in violation of 18 U.S.C. § 371. The
District Court sentenced Barry to no prison time and five years’ supervised release.
Among the supervised-release conditions imposed, the Court required that Barry (1) “not
frequent places where controlled substances are illegally sold, used, distributed, or
administered” and (2) “not associate with any persons engaged in criminal activity” or
“with any persons convicted of a felony” without his probation officer’s permission.
1
The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. See United States v. Loy, 237
2
Roughly two and a half years later, the District Court revoked Barry’s supervised
release. (He had stabbed two people, travelled outside of the Eastern District of
Pennsylvania without permission, used controlled substances, stopped attending a drug-
treatment program, and did not report to his probation officer as directed.) The District
Court imposed 14 months’ imprisonment, two years’ supervised release, and the “same”
conditions it had previously imposed. Barry did not challenge the controlled-substance
or association supervised-release conditions in the District Court.
II.
On appeal, Barry argues that the District Court committed plain error by imposing
the controlled-substance and association conditions because they are unconstitutionally
vague. A supervised-release condition is unconstitutionally vague “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.
Maloney, 513 F.3d 350, 357 (3d Cir. 2008) (internal quotation marks and citation
omitted). And under plain-error review, Barry must show that (1) an error occurred;
(2) the error is “obvious”; and (3) the error “affected the outcome of the district court
proceedings.” United States v. Olano, 507 U.S. 725, 732–34 (1993). If Barry makes
these showings, we exercise our discretion to award relief when the error “seriously
affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 736
(internal quotation marks and citation omitted). Because an unconstitutionally vague
condition would have affected the outcome of the District Court proceedings, the parties
F.3d 251, 255 (3d Cir. 2001). 3
dispute only whether the controlled-substance and association conditions are void for
vagueness and whether this error is obvious.
Barry argues that the controlled-substance condition is unconstitutionally vague
because this condition neither specifies how many trips result in “frequent[ing]” sites of
drug activity, nor does it clarify whether Barry must knowingly be in such a place to
violate it. In support Barry points to Seventh Circuit decisions holding that the
controlled-substance condition is unconstitutionally vague for the reasons he identifies.
See United States v. Kappes, 782 F.3d 828, 848–49 (7th Cir. 2015); United States v.
Thompson, 777 F.3d 368, 379 (7th Cir. 2015). Barry also emphasizes that before the
District Court revoked his supervised release in 2018, the Sentencing Commission
eliminated the controlled-substance condition from its list of standard conditions because
it concluded that the controlled-substance condition was “encompassed by” the
association condition. U.S. Sentencing Guidelines Manual app. C, amend. 803 (U.S.
Sentencing Comm’n 2016). Because the Seventh Circuit and the Sentencing
Commission have “rejected” the controlled-substance condition, Barry contends that the
District Court plainly erred by imposing it.
Courts of appeals are split on whether the controlled-substance condition is
unconstitutionally vague. Diverging from the Seventh Circuit’s position, the Ninth and
Tenth Circuits have ruled that the controlled-substance condition is not unconstitutionally
vague, reasoning that “commonsense” dictates that this condition has a knowledge
requirement and is readily understood. United States v. Llantada, 815 F.3d 679, 684
(10th Cir. 2016); United States v. Phillips, 704 F.3d 754, 767–68 (9th Cir. 2012). The
4
existence of this circuit split is evidence that reasonable minds may differ as to this
condition’s meaning and application and that this condition may be unconstitutionally
vague. But the existence of the circuit split also demonstrates that any mistake by the
District Court in imposing this condition is not plain error. When a District Court rules
on a sentencing issue in the same way as an out-of-circuit court of appeals (assuming this
Court has not ruled on the issue), any mistake by the District Court is not plain error.
See United States v. Cruz, 757 F.3d 372, 387 n.11 (3d Cir. 2014).
Barry makes a similar argument in asserting that the association condition is also
unconstitutionally vague. He asserts that this condition impermissibly fails to clarify
whether, to violate it, a defendant must know he is associating with a felon or other
criminal; he says this condition could be reasonably interpreted as a strict-liability rule.
He adds that the term “associate” is vague because it does not put defendants on notice of
the number of meetings required to constitute a violation. He bolsters his argument by
underscoring the Seventh Circuit’s holding that the association condition is
unconstitutional for the reasons he highlights and the Sentencing Commission’s
elimination of “associate” from its proposed rewording of this condition. See Kappes,
782 F.3d at 848–49; Thompson, 777 F.3d at 377; U.S.S.G., app. C, amend. 803.
Although this Court has not directly ruled on the constitutionality of Barry’s
association condition, we have held that “associational conditions” are not
unconstitutionally vague because “it is well established that [they] … do not extend to
casual or chance meetings.” United States v. Loy, 237 F.3d 251, 268–69 (3d Cir. 2001).
Because “chance meetings” do not violate association conditions, we have effectively
5
explained that Barry’s association condition has a knowledge requirement. Moreover, in
Loy, we declared that a defendant violates an association condition by “deliberately
seek[ing]” contact with the prohibited group, id. at 269, indicating that one meeting can
be enough to violate this condition. Finally, even if we ruled that the association
condition is unconstitutionally vague, the District Court’s decision to impose it is not
plain error because several circuits have held this condition to be constitutional.
See Llantada, 815 F.3d at 684–85; United States v. King, 608 F.3d 1122, 1128–29
(9th Cir. 2010); see also Cruz, 757 F.3d at 387 n.11.
III.
Because the District Court did not commit plain error by imposing either the
controlled-substance or association conditions, we will affirm the order. We recognize,
however, given the split of authority we have discussed, that Barry’s concerns regarding
these conditions are not unwarranted. We therefore encourage the District Court to
consider exercising its authority under 18 U.S.C. § 3583(e)(2), to impose the updated
condition recommended by the Sentencing Guidelines, U.S.S.G. § 5D1.3(c)(8) (2018), in
place of the controlled-substance and association conditions.
6