United States v. Jerry Wood, Jr. , 634 F. App'x 170 ( 2015 )

FILED
NOT FOR PUBLICATION
DEC 15 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30180
Plaintiff - Appellee, D.C. No. 2:12-cr-00326-RAJ-1
v.
MEMORANDUM*
JERRY WOOD, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted December 10, 2015**
Seattle, Washington
Before: McKEOWN and TALLMAN, Circuit Judges and LEFKOW,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Joan Humphrey Lefkow, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.
Jerry Wood, a felon on probation, challenges a district court order revoking
his term of supervised release and sentencing him to six months of federal
detention. The district court found that Wood violated the conditions of his release
by being around children and driving with a suspended license. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court correctly concluded that Mr. Wood violated a condition of
his release which prevented contact with children unless “supervised by an adult[]
who has been approved in advance by the sexual deviancy therapist and the
supervising probation officer.” Wood argues that his mother was approved as a
supervising adult for his own children, and his sexual deviancy therapist led him to
believe his mother could supervise his contact with all children. But Wood needed
his probation officer’s approval. Because it is undisputed that Wood’s probation
officer never approved his mother as a supervising adult for his girlfriend’s
children and in fact warned Wood to stay away from them, the district court
properly found that Wood violated the condition of his release prohibiting contact
with children. Given that the district court’s decision is well supported in the
record and primarily based on unreviewable credibility determinations, we hold
that the district court did not clearly err or abuse its discretion in finding Wood
violated the condition of his release preventing contact with children and therefore
2
revoking his term of release. See United States v. Harvey, 659 F.3d 1272, 1274
(9th Cir. 2011); United States v. Lomayaoma, 86 F.3d 142, 146–47 (9th Cir. 1996).
Wood also argues, based on RCW 46.61.005, that he cannot be guilty of
driving with a suspended license when he did not enter a public highway. But
RCW 46.61.005 states that driving crimes generally apply only on highways
except “[w]here a different place is specifically referred to in a given section.”
RCW 46.20.342, the section at issue here, was specifically amended in 1990 to
remove and replace “on any public highway of” with “in” to broaden its
application to all vehicles driven anywhere “in this state.” See S.S.B. No. 6608,
51st Les. (Wash. 1990). Based on this legislative history, the district court held
that driving on a highway was not a requirement under the statute. We review this
issue of statutory interpretation de novo. Schleining v. Thomas, 642 F.3d 1242,
1246 (9th Cir. 2011). Given the legislative history and unambiguous language of
RCW 46.20.342, we agree with the district court’s interpretation. We also reject
the defendant’s reliance on State v. Day, 638 P.2d 546 (Wash. 1981) (en banc),
primarily because Wood drove down a shared, public driveway that connects to a
public road unlike the defendant in Day. Therefore, the district court did not err in
finding that Wood violated his release conditions by driving with a suspended
license.
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AFFIRMED.
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