United States v. Delay Graham ( 2019 )

FILED
NOT FOR PUBLICATION
JUN 17 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10200
Plaintiff-Appellee, D.C. No.
4:16-cr-00538-JSW-1
v.
DELAY GRAHAM, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted June 13, 2019**
San Francisco, California
Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.
Defendant Delay Graham appeals the district court’s imposition of a
condition of supervised release (special condition 2) which states that Graham
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.
“must not associate with any mem[ber] of the Ghost Town Gang, and must not
wear the clothing, colors, or insignia of the Ghost Town Gang.” We have
jurisdiction under 28 U.S.C. § 1291.
Because Graham did not object to special condition 2 in the district court,
we review for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009).
We have not held that a condition that prohibits contact with gang members, even
when the defendant’s sibling is a gang member, implicates a “particularly
significant liberty interest.” United States v. Wolf Child, 699 F.3d 1082, 1090 (9th
Cir. 2012). Therefore, the district court’s failure to make specific on-the-record
findings before imposing special condition 2 was not a “clear or obvious”
procedural error. United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir.
2003). Further, the district court did not commit a substantive error in imposing
the condition, because there is sufficient evidence that Graham was a member of
the Ghost Town Gang, and (even if he were not a member) prohibiting Graham
from associating with gang members furthers the statutory goals of deterring future
criminal conduct and protecting the public. See United States v. Evans, 883 F.3d
1154, 1161 (9th Cir. 2018).
Finally, special condition 2 is not “so vague that it fails to provide people of
ordinary intelligence with fair notice of what is prohibited.” United States v. Sims,
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849 F.3d 1259, 1260 (9th Cir. 2017). Given the evidence that Graham was a
member of the Ghost Town Gang, he is familiar with its members, clothing, colors,
and insignia. See United States v. Soltero, 510 F.3d 858, 866–67 (9th Cir. 2007)
(per curiam). Further, because we construe the condition “consistent with
well-established jurisprudence under which we presume prohibited criminal acts
require an element of mens rea,” it does not reach unknowing or incidental
association with gang members. United States v. Vega, 545 F.3d 743, 750 (9th Cir.
2008).
AFFIRMED.
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