United States v. Lee Farley , 696 F. App'x 210 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 07 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 16-10179
Plaintiff-Appellee, D.C. No.
3:15-cr-00092-THE-1
v.
LEE FARLEY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Argued and Submitted April 20, 2017
San Francisco, California
Before: PAEZ and IKUTA, Circuit Judges, and FABER,** District Judge.
On November 16, 2016, Farley pled guilty to two counts: (1) felon in
possession of a firearm, 18 U.S.C. § 922(g)(1), and (2) possession of a stolen
firearm, 18 U.S.C. § 922(j). The district court sentenced Farley to 76 months in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Faber, United States District Judge for the
Southern District of West Virginia, sitting by designation.
prison, and upon release from prison, a term of three years of supervised release.
Farley challenges his prison sentence as both procedurally and substantively
unreasonable. He also challenges three special conditions of his supervised release
on a host of different grounds. We have jurisdiction pursuant to 28 U.S.C. § 1291
and 18 U.S.C. § 3742. We review sentencing decisions for abuse of discretion.
See, e.g., United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010). For the reasons discussed below, we affirm.
1. Farley first argues that Special Condition Four, which mandates that he
provide his probation officer with certain financial documents, is neither
reasonably related to his offense nor his history or characteristics. Farley’s
contention lacks merit as the condition relates to both his history and
characteristics, including chronic unemployment as well as a history of drug and
burglary charges. See United States v. Rearden, 349 F.3d 608, 619 (9th Cir. 2003)
(“[A] condition of supervised release need not relate to the offense as long as the
condition satisfies the goal of deterrence, protection of the public, or
rehabilitation.”). As a result, the district court did not abuse its discretion in
imposing Special Condition Four.
2. Farley next argues that Special Condition Ten, which limits his ability to
enter a certain geographical area of San Francisco, is not reasonably related to his
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offense or his history and characteristics. Again, Farley’s argument is unavailing
as Farley has a history of committing crimes in and around the restricted area. As
with Special Condition Four, the district court did not abuse its discretion in
imposing Special Condition Ten because it furthers the goals of deterrence,
protection of the public, and rehabilitation. See, e.g., United States v. Watson, 582
F.3d 974, 983 (9th Cir. 2009).
3. Farley next challenges the imposition of Special Condition Eight, which
limits his ability to associate with gang members, as well as to wear certain
clothing and colors, on four grounds. We address each in turn.
First, when “a particularly significant liberty interest is at stake, the district
court must follow additional procedures and make special findings” in order to
justify imposing such a condition of supervised release. United States v. Stoterau,
524 F.3d 988, 1005 (9th Cir. 2008). Farley argues that the district court erred in
failing to provide additional procedural protections because Special Condition
Eight implicates a “particularly significant liberty interest” by restricting his ability
to associate with his brothers who are gang members. Farley failed to make this
objection at his sentencing hearing, and it is therefore subject to plain error review.
See United States v. Johnson, 626 F.3d 1085, 1088-89 (9th Cir. 2010). Even
assuming that siblings could qualify for an intimate relationship under our
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precedent as set forth in United States v. Napulou, 593 F.3d 1041 (9th Cir. 2010),
Farley’s failure to object or present any evidence to that effect means that the
district court’s failure to consider that relationship does not rise to the level of plain
error.
Second, Farley argues that several of the terms in Special Condition Eight
violate his due process rights because they are overbroad. Specifically, he argues
that the restrictions limiting his ability (1) to have any “connection whatsoever”
with gang members, and (2) to be “in the company of [gang members] or wearing
the clothing, colors or insignia” of any gang are overbroad. We need not address
these arguments because, consistent with our precedent, we construe these broad
terms in Special Condition Eight to include a “knowing element.” See, e.g., United
States v. Vega, 545 F.3d 743, 750 (9th Cir. 2008) (“We construe [the condition]
with well-established jurisprudence under which we presume prohibited criminal
acts require an element of mens rea.”). As a result, were the government to try and
revoke Farley’s supervised release for violating one of the terms in question, it
would need to demonstrate that Farley knowingly was in contact with a gang
member, or knowingly donned the color of a gang for the purpose of associating
himself with the gang. Id.
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Farley next argues that the last part of Special Condition Eight, which states
that if Farley is “found to be in the company of such individuals [gang members]
or wearing the[ir] clothing, colors, or insignia . . . the court will presume that the
association was for the purpose of participating in gang activities,” violates due
process. Again, we need not address this issue, because we understand this
provision to have no effect on the government’s burden at a revocation hearing. In
a supervised release revocation hearing, the government always must prove, by a
preponderance of the evidence, that the defendant violated a condition of release.
18 U.S.C. § 3583(e)(3); see also United States v. Perez, 526 F.3d 543, 547 (9th
Cir. 2008).
Finally, Farley levies one more argument against Special Condition
Eight—that it is substantively unreasonable and unsupported by the record. This
argument fails because Special Condition Eight seeks to proscribe Farley’s future
involvement with gangs. See, e.g., United States v. Soltero, 510 F.3d 858, 866-67
(9th Cir. 2007); Vega, 545 F.3d at 749-50. As a result, the district court did not
abuse its discretion in imposing Special Condition Eight.
4. Farley’s final argument is that his sentence is both procedurally and
substantively unreasonable. He contends that the district court procedurally erred
because it failed to consider the merits of Farley’s argument that he was beginning
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to make changes in his life, but did not have an adequate opportunity to do so
given the short period of time that he was out of custody. However, the district
court considered this argument and rejected it. In doing so, it did not abuse its
discretion. See United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010); United States v. Gutierrez–Sanchez, 587 F.3d 904, 908 (9th Cir. 2009)
(“The weight to be given the various factors in a particular case is for the discretion
of the district court.”).
Farley argues that his sentence was substantively unreasonable because the
district court erroneously failed to consider the merits of his argument that he
should receive a downward adjustment because he had already served time in state
prison for the same underlying conduct. Again, the district court considered the
argument and rejected it. In “review[ing] the totality of the circumstances and
recogniz[ing] that the sentencing judge is in a superior position to find facts and
judge their import under § 3553(a) in the individual case,” United States v.
Blinkinsop, 606 F.3d 1110, 1116 (9th Cir. 2010) (internal quotation marks and
alterations omitted), the district court’s 76-month sentence was not unreasonable.
Affirmed.
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