United States v. Anthony Evans , 883 F.3d 1154 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 16-10310
Plaintiff-Appellee, 16-10311
v. D.C. Nos.
4:08-cr-00011-JSW
ANTHONY EVANS, 4:16-cr-00012-JSW
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted December 5, 2017
San Francisco, California
Filed February 28, 2018
Before: MILAN D. SMITH, JR., and SANDRA S.
IKUTA, Circuit Judges, and JOHN D. BATES, * District
Judge.
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Ikuta
*
The Honorable John D. Bates, Senior District Judge for the United
States District Court for the District of Columbia, sitting by designation.
2 UNITED STATES V. EVANS
SUMMARY **
Criminal Law
The panel affirmed a sentence for violating conditions of
supervised release, vacated a sentence for being a felon in
possession of a firearm, and remanded for the district court
to correct conditions of supervised release.
The panel held that the district court did not err in
applying an enhancement under USSG § 2A2.2(a) and
(b)(2)(A) for use of a firearm in the commission of an
aggravated assault.
The panel rejected most of the defendant’s challenges to
supervised release Special Condition 5, which imposed
several gang-related constraints, but the panel remanded for
the district court to strike the final sentence, which explicitly
removes the requirement that the government prove mens
rea in a future revocation proceeding.
The panel agreed with the defendant that three of his
standard conditions of supervised release – which the
Sentencing Commission has since amended to address their
vagueness – are unconstitutionally vague. The panel
remanded for the district court to remove the phrase “meet
other family responsibilities” from Standard Condition 4.
The panel remanded for the district court to remove an
ambiguity in Standard Condition 5, which requires the
defendant to work “regularly” at a lawful occupation. The
panel remanded for the district court to modify Standard
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. EVANS 3
Condition 13 – which requires the defendant, as directed by
the probation officer, to notify third parties of risks that may
be occasioned by his criminal record or personal history or
characteristics – in order to provide some determinate
guidance to the defendant’s probation officer, as well as to
the defendant.
The panel did not need to decide whether it should read
into Fed. R. Crim. P. 32.1 a requirement that a district court
in a revocation proceeding resolve factual disputes or
determine explicitly that such resolution is unnecessary. The
panel held that any error by the district court in failing to
resolve a disputed factual allegation made by the probation
officer in the revocation proceeding was harmless.
Dissenting as to Part II.B of the opinion, Judge Ikuta
wrote that rather than follow the Supreme Court’s guidance
that a statute is not unconstitutionally vague merely because
it lacks mathematical certainty, the majority erroneously
invalidates three standard conditions of supervised release
that have been applied for three decades without giving rise
to any confusion.
4 UNITED STATES V. EVANS
COUNSEL
Shilpi Agarwal (argued) and Carmen Smarandoiu, Assistant
Federal Public Defenders; Steven G. Kalar, Federal Public
Defender; Office of the Federal Public Defender, San
Francisco, California; for Defendant-Appellant.
Susan B. Gray (argued), Assistant United States Attorney; J.
Douglas Wilson, Chief, Appellate Division; Brian J. Stretch,
United States Attorney; United States Attorney’s Office, San
Francisco, California; for Plaintiff-Appellee.
OPINION
M. SMITH, Circuit Judge:
Anthony Evans appeals from the sentence imposed
because of his conviction for being a felon in possession of
a firearm and ammunition, in violation of 18 U.S.C.
§ 922(g)(1). He also appeals the sentence imposed for
violating the conditions of his supervised release in another
case. Evans argues that the district court erred in applying a
sentencing enhancement under the aggravated assault
sentencing guideline, in imposing certain conditions of
supervised release, and in failing to resolve Evans’s factual
objection to an allegation that he had violated his conditions
of supervised release on another occasion. We vacate and
remand in part, and affirm in part.
FACTUAL AND PROCEDURAL BACKGROUND
Surveillance camera footage shows that Evans was
sitting in the passenger seat of a double-parked car on July
15, 2015, in the Bayview district of San Francisco when a
man in a black sweatshirt approached and spoke to him.
UNITED STATES V. EVANS 5
Evans’s girlfriend, Jamellah Ali-Suluki, left the driver’s seat
of the car and walked out of the camera frame. The man in
the black sweatshirt walked away and conferred with another
man, who bent through the front passenger door of a
neighboring blue car, and then began shooting at Evans.
After firing a number of shots, five of which struck Evans,
the man appeared to pass something to the man in the black
sweatshirt, and then fled. The man in the black sweatshirt
closed the front passenger door of the blue car and looked
toward Evans. When Evans got out of the passenger seat of
his car, the man in the black sweatshirt fled down the
sidewalk. Evans fired several shots at him. Ali-Suluki then
returned to the car and drove Evans to the hospital.
In July of 2015, Evans was on supervised release for an
earlier felony conviction. After the shooting, the Probation
Office claimed that Evans had violated the terms of his
supervised release by possessing a firearm, in violation of
18 U.S.C. § 922(g)(1). Separately, Evans was also charged
with being a felon in possession of a firearm and ammunition
in violation of the same statute. Evans pled guilty to the
charge and admitted the corresponding supervised release
violation. The Probation Office also alleged that Evans
committed aggravated assault when he fired his weapon on
July 15, and that he had previously violated the conditions
of his supervised release by keeping a gun at his residence in
April 2015. Evans denied both of these allegations.
At sentencing, the district court did not address the April
2015 allegation. Because of Evans’s criminal history and
the seriousness of possessing a firearm, the court sentenced
Evans to the maximum two-year sentence for the supervised
release violation, to be served consecutively to the court’s
sentence on the substantive charge. The district court heard
argument on the felon-in-possession charge about whether
6 UNITED STATES V. EVANS
Evans acted in self-defense when he fired shots at the man
in the black sweatshirt. The court stated that it was faced
with
an interesting legal paradigm here because
normally in a situation like this . . . I believe
under state law, [the defendant] has the
burden of proof of the affirmative defense.
But we’re not at a situation where — that
situation. We’re at a situation where this
court has to stand here or sit here as an
adjudicatory body to determine all in, is this
a — an aggravated assault or one that is
legally excused by virtue of a self-defense —
a self-defense defense being made out by the
facts in the case.
The court found that “the defendant did not initiate the
shooting,” but he did get out of the car and fire at “one of
[his assailant’s] coconspirators,” who was fleeing.
Therefore, the court found that Evans had not acted in self-
defense and sentenced him to 57 months of imprisonment
followed by three years of supervised release subject to both
standard and special conditions. Evans’s attorney sought
permission to address the supervised release conditions, but
the court denied him permission to do so.
Evans timely appealed. We have jurisdiction pursuant to
28 U.S.C. § 1291.
UNITED STATES V. EVANS 7
ANALYSIS
I. Aggravated Assault Sentencing Enhancement
In general, Sentencing Guideline § 2K2.1(a)(6)
prescribes an offense level of 14 for the possession of a
firearm by a prohibited person. However, pursuant to
§§ 2K2.1(c)(1)(A) and 2X1.1, if a defendant charged with
unlawful possession of a firearm used the firearm in the
commission of another offense, the guideline for that other
offense applies if the resulting offense level is higher. When
the other offense is an aggravated assault in which a firearm
is discharged, the offense level under § 2A2.2(a) and
(b)(2)(A) is 19.
The district court found that Evans used a firearm in the
commission of an aggravated assault, and accordingly
applied § 2A2.2(a) and (b)(2)(A). Evans argues here, as he
did below, that the district court’s finding was erroneous
because he acted in self-defense. The underlying offense of
assault is codified in California Penal Code § 240.
California law provides that self-defense “negates
culpability for assaultive crimes.” People v. Adrian,
185 Cal. Rptr. 506, 510 (Cal. Ct. App. 1982). 1 We review
the district court’s factual findings for clear error. United
States v. Christensen, 828 F.3d 763, 815 (9th Cir. 2015).
At the time Evans exited the car with his gun drawn, he
had already been shot five times, and the surveillance video
suggests the man he fired at was in league with the shooter.
Nevertheless, when Evans began firing the man was already
1
Under California law, there is no duty to retreat, and even a
convicted felon may “defend himself, stand his ground, and use the
amount of force reasonable under the circumstances.” People v. Rhodes,
29 Cal. Rptr. 3d 226, 232 (Cal. Ct. App. 2005).
8 UNITED STATES V. EVANS
fleeing, and Evans continued firing at him as the man ran
down the street. Based on its review of the security footage,
the district court concluded that Evans did not reasonably
believe it was necessary to shoot a fleeing man in order to
defend himself, and we conclude that finding was not clearly
erroneous.
Evans also asserts that the district court’s finding was
improper because it misapplied the burden of proof. It is not
easy to discern where the court placed the burden of proof,
but it did misstate California law when it noted that “under
state law, [the defendant] has the burden of proof of the
affirmative defense.” In fact, California law places the
burden on the state to disprove self-defense beyond a
reasonable doubt at a criminal trial. See Adrian, 185 Cal.
Rptr. at 510. Evans does not argue that the “beyond a
reasonable doubt” standard applied here. Instead, he
recognizes that the government’s burden was to disprove
self-defense by a preponderance of the evidence, as is
generally required when a party seeks to adjust the offense
level at sentencing. See United States v. Charlesworth,
217 F.3d 1155, 1158 (9th Cir. 2000).
Although its remarks were somewhat ambiguous, the
court may have based its conclusion on an objective view of
the record without allocating burdens to either side. 2 Even
2
There are contexts in which a district court makes a determination
without regard to burdens of proof, such as in a habeas proceeding when
deciding whether a trial error was harmless. See O’Neal v. McAninch,
513 U.S. 432, 436–37 (1995) (“[W]e think it conceptually clearer for the
judge to ask directly, ‘Do I, the judge, think that the error substantially
influenced the jury’s decision?’ than for the judge to try to put the same
question in terms of proof burdens (e.g., ‘Do I believe the party has borne
its burden of showing . . . ?’).”). However, sentencing is not such a
context.
UNITED STATES V. EVANS 9
assuming, arguendo, that the district court failed to place the
burden of proof on the government to disprove self-defense,
however, the error was harmless. The surveillance video
clearly showed that Evans opened fire on a fleeing man.
Under the circumstances, any failure by the district court to
properly assign the burden of proof did not affect its finding
that Evans did not act in self-defense.
II. Conditions of Supervised Release
After serving his consecutive prison sentences for the
violation of supervised release and the felon-in-possession
charge, Evans will be placed on supervised release for three
years, subject to numerous conditions. Evans challenges
four of those conditions on various grounds. We generally
review conditions of supervised release for abuse of
discretion, but we review de novo claims that such
conditions violate the Constitution. United States v. Watson,
582 F.3d 974, 981 (9th Cir. 2009). 3 Evans argues that all of
the challenged conditions are unconstitutionally vague. 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
3
The government argues that we should review Evans’s challenges
to the conditions of supervised release for plain error because they were
not raised below. However, Evans’s counsel sought to address the
conditions after the court announced them, and was denied permission
to do so. “If a party does not have an opportunity to object to a ruling or
order, the absence of an objection does not later prejudice that party.”
Fed. R. Crim. P. 51(b); see also United States v. Mancinas-Flores,
588 F.3d 677, 686 (9th Cir. 2009) (“[A]n objection is required only if the
court affords a party the opportunity to make one.”).
10 UNITED STATES V. EVANS
States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004) (quoting
United States v. Loy, 237 F.3d 251, 262 (3d Cir. 2001)).
A. Special Condition 5
Evans first argues that Special Condition 5, which
imposed several gang-related constraints, was procedurally
erroneous, substantively unreasonable, and
unconstitutionally vague and overbroad. Special Condition
5 reads as follows:
The defendant shall not associate with any
member of the Down Below Gang. The
defendant shall have no connection
whatsoever with the Down Below Gang or
any other gang. If he is found to be in the
company of such individuals or wearing the
clothing, colors or insignia of the Down
Below Gang, or any other gang, the court will
presume that the association was for the
purpose of participating in gang activities.
“On appeal, we first consider whether the district court
committed significant procedural error, then we consider the
substantive reasonableness of the sentence.” United States
v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Evans
asserts that the court’s failure to adequately explain the
choice of conditions is procedural error. See United States
v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (“[T]he
district court must provide a sufficient explanation to ‘permit
meaningful appellate review’ and communicate ‘that a
reasoned decision has been made.’” (quoting Carty,
520 F.3d at 992–93)).
The court did not explain its reasoning for this condition,
which was procedural error unless “the reasoning is apparent
UNITED STATES V. EVANS 11
from the record.” Id. (emphasis omitted) (quoting United
States v. Collins, 684 F.3d 873, 890 (9th Cir. 2012)). The
Presentence Investigation Report stated that Evans “has been
identified as an affiliate of the Down Below Gang, which
operates out of the Sunnydale Housing Projects.” The
probation officer’s sentencing recommendation notes that
“[o]n his prior term of supervised release, the defendant was
prohibited from associating with any member of the Down
Below Gang and was prohibited from being in the vicinity
of the Sunnydale District in San Francisco.” At sentencing,
Evans’s counsel explained that Evans grew up in Sunnydale,
where “the two main gangs” are the “Up the Hill Gang and
Down the Hill Gang” (presumably the same as the Down
Below Gang), and that Evans had friends in both gangs. On
this record, the district court’s reasoning was apparent: it
believed that Evans was connected to the Down Below
Gang, and that requiring him to avoid that and other gangs
would reduce his risk of reoffending.
Because Special Condition 5 is not procedurally
erroneous, we next consider whether it is substantively
unreasonable. “A supervised release condition is
substantively unreasonable if it ‘is not reasonably related to
the goal[s] of deterrence, protection of the public, or
rehabilitation of the offender,’ or if it infringes more on the
offender’s liberty than is ‘reasonably necessary’ to
accomplish these statutory goals.” Wolf Child, 699 F.3d at
1090 (alteration in original) (first quoting Collins, 684 F.3d
at 892; and then quoting 18 U.S.C. § 3583(d)(2)). The
government bears the burden of showing “that a particular
condition of supervised release involves no greater
deprivation of liberty than is reasonably necessary to serve
the goals of supervised release.” United States v. Weber,
451 F.3d 552, 559 (9th Cir. 2006).
12 UNITED STATES V. EVANS
The district court did not abuse its discretion in imposing
the gang condition. Evans denies being a gang member and
argues that none of his offenses were gang-related.
However, he has been linked to the Down Below Gang and
its members, and he was previously arrested for violating the
conditions of his supervised release that prohibited him from
entering the Sunnydale District (where the Down Below
Gang operates) and associating with persons convicted of
felonies. A condition barring contact with an organization
may be substantively reasonable even if the defendant denies
membership, see United States v. Ross, 476 F.3d 719, 721–
22 (9th Cir. 2007), and it need not relate to the defendant’s
current or prior offenses as long as it serves the statutory
goals of sentencing, see Watson, 582 F.3d at 983. The
district court “could properly have concluded that [Evans]
was more likely to relapse into crime if he returned to his
prior associations. Probation conditions may seek to prevent
reversion into a former crime-inducing lifestyle by barring
contact with old haunts and associates, even though the
activities may be legal.” United States v. Bolinger, 940 F.2d
478, 480 (9th Cir. 1991).
Because Special Condition 5 is neither procedurally
erroneous nor substantively unreasonable as a whole, we
next address Evans’s challenges to subsections of the
condition. Evans challenges the requirement that he have
“no connection whatsoever with the Down Below Gang or
any other gang” as unconstitutionally vague and overbroad
because it appears to prohibit incidental or unknowing
contacts with gang members or even people who are
connected to gang members. See United States v. Soltero,
510 F.3d 858, 865–66 (9th Cir. 2007) (per curiam).
However, we construe this condition “consistent with well-
established jurisprudence under which we presume
prohibited criminal acts require an element of mens rea.”
UNITED STATES V. EVANS 13
United States v. Vega, 545 F.3d 743, 750 (9th Cir. 2008)
(construing similar gang condition to require mens rea); see
also Soltero, 510 F.3d at 866–67 (construing similar gang
condition to exclude incidental contacts). Thus construed,
the condition does not reach unknowing or incidental
contacts, and it is not vague or overbroad.
While this reading of the condition saves it from
unconstitutionality, it renders the condition’s last sentence
problematic. That sentence reads: “If [Evans] is found to be
in the company of [gang members] or wearing the clothing,
colors or insignia of the Down Below Gang, or any other
gang, the court will presume that the association was for the
purpose of participating in gang activities.” This
presumption explicitly removes the requirement that the
government prove mens rea in a future revocation
proceeding and therefore, if allowed to stand, would render
the condition vague and overbroad. See Wolf Child,
699 F.3d at 1100 n.9. Accordingly, although we uphold the
rest of Special Condition 5, we remand for the district court
to strike this final sentence. See Soltero, 510 F.3d at 867.
B. Standard Conditions
Evans next challenges three “standard” conditions of
supervised release, arguing that each of them is
unconstitutionally vague. 4 In response to criticism from the
Seventh Circuit, among other critics, the Sentencing
4
In the language of the Sentencing Guidelines, “standard”
conditions should be distinguished from “mandatory” conditions. The
latter must be imposed on any defendant placed on supervised release,
while the former are merely recommended to the extent that they serve
the purposes of sentencing. U.S. Sentencing Guidelines Manual
§ 5D1.3(a), (c).
14 UNITED STATES V. EVANS
Commission has amended the Sentencing Guidelines to
address these three conditions’ vagueness. See U.S.
Sentencing Comm’n, Amendments to the Sentencing
Guidelines 43–44 (Apr. 28, 2016),
https://www.ussc.gov/sites/default/files/pdf/amendment-
process/reader-friendly-amendments/20160428_RF.pdf. 5
However, Evans’s sentence still includes the standard
conditions in effect on the date of his sentencing. See U.S.
Sentencing Guidelines Manual § 1B1.11(a). We agree with
Evans that the three challenged standard conditions are
unconstitutionally vague.
Standard Condition 4 requires Evans to “support his or
her dependents and meet other family responsibilities.”
Evans challenges the phrase “meet other family
responsibilities,” contending that its meaning is too vague to
alert him to his responsibilities. See United States v. Kappes,
782 F.3d 828, 849 (7th Cir. 2015) (“[I]t is not apparent what
‘other family responsibilities’ means, given that it appears to
mean something different than ‘support[ing]’ [appellant’s]
as-yet nonexistent dependents.” (second alteration in
original)). The government disagrees, but it has offered no
suggestion as to what “other family responsibilities” might
5
The dissent contends that “until recently, no one doubted that
Standard Conditions 4, 5, and 13 provided people of ordinary
intelligence with fair notice of what was prohibited.” Dissenting Op. at
29. But as we discuss below, the entities that “recently” became
concerned with the vagueness of these conditions were several
successive panels of the Seventh Circuit, and the only courts of appeals
to address the issue before then—the Tenth and the Eleventh Circuits—
did so in a cursory and unpersuasive fashion. Likewise, in amending
these standard conditions, the Sentencing Commission has adopted the
Seventh Circuit’s view.
UNITED STATES V. EVANS 15
mean. 6 Does it mean that Evans must wash the dishes after
dinner? Does it mean he must attend his children’s soccer
games? If a relative comes to Evans with a problem, does
the condition require him to do his best to give good advice
rather than ignoring him or her? 7 The Sentencing
Commission’s amendment resolves the problem by omitting
the phrase. See U.S. Sentencing Guidelines Manual
§ 5D1.3(d)(1). We remand for the district court to do the
same.
Standard Condition 5 requires Evans to “work regularly
at a lawful occupation, unless excused by the probation
officer for schooling, training, or other acceptable reasons.”
Evans challenges the word “regularly,” arguing that it has no
6
The government relies on a Tenth Circuit case, United States v.
Munoz, in which that court rejected a vagueness challenge to the words
“support” and “dependents” in an identically worded condition.
812 F.3d 809, 818–19 (10th Cir. 2016). But Munoz did not address the
phrase that Evans challenges here: “other family responsibilities.” It
therefore provides no support for the government’s position.
7
The dissent criticizes our reliance on “hypotheticals and rhetorical
questions,” see Dissenting Op. at 30, concluding that “no one would have
trouble understanding and applying” conditions like Standard Condition
4 in the real world, id. at 25 (citations and internal quotation marks
omitted). But for all its talk of commonsense application, the dissent’s
proffered explanations of the conditions do not answer any of the
questions posed. For example, the dissent reads Special Condition 4 to
require Evans to “provide support to his four children” (which, as the
Seventh Circuit noted in Kappes, 782 F.3d at 849, cannot be what it
means to “meet other family responsibilities” because the condition
already independently requires Evans to “support his . . . dependents”)
and to “discharge family responsibilities of analogous significance.”
Dissenting Op. at 25. But this reading amounts to little more than a
rephrasing of the condition and hence does little to clarify the condition’s
commonsense meaning.
16 UNITED STATES V. EVANS
clear definition and renders the condition unconstitutionally
vague. See United States v. Poulin, 809 F.3d 924, 932 (7th
Cir. 2016); Kappes, 782 F.3d at 849. Indeed, the word
“regularly” has no clear meaning in this context: it could
mean something like “full-time” or “close to full-time”—the
fact that the amended condition requires thirty hours per
week, see U.S. Sentencing Guidelines Manual
§ 5D1.3(c)(7), seems to support this reading—or it could
mean “the same amount each week” or “the same amount
each month.” This ambiguity might confront Evans if he
had, for example, a job opportunity that would offer only ten
hours per week; would taking that job be enough to keep him
out of jail? This condition places Evans “in the untenable
position of discovering the meaning of his supervised release
condition only under continual threat of reimprisonment, in
sequential hearings before the court.” United States v.
Stoterau, 524 F.3d 988, 1003 (9th Cir. 2008) (quoting United
States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002)). 8
We remand for the district court to modify Standard
Condition 5 to remove this ambiguity.
Standard Condition 13 requires Evans, “[a]s directed by
the probation officer,” to “notify third parties of risks that
may be occasioned by [his] criminal record or personal
history or characteristics . . . .” Evans argues that, as the
Seventh Circuit has held, “[t]here is no indication of what is
meant by ‘personal history’ and ‘characteristics’ or what
8
Again, the government relies on a Tenth Circuit case, United States
v. Llantada, which upheld a similar condition against a vagueness
challenge. 815 F.3d 679, 681–82 (10th Cir. 2016). But Llantada simply
cited Munoz and concluded that under the “common sense, non-
technical” approach endorsed in that case, “[n]either a parolee nor his
parole officer would have trouble understanding and applying” the
condition. Id. at 682. We do not find this conclusory reasoning
persuasive.
UNITED STATES V. EVANS 17
‘risks’ must be disclosed to which ‘third parties.’” United
States v. Thompson, 777 F.3d 368, 379 (7th Cir. 2015); see
also United States v. Hill, 818 F.3d 342, 345 (7th Cir. 2016)
(“Hopelessly vague is the further condition . . . that the
defendant ‘shall notify third parties of risks that may be
occasioned by the defendant’s criminal record or personal
history or characteristics.’ Does this mean that if he happens
to be standing next to a six-year-old girl at a soda fountain
he has to warn her that he has been convicted of receipt of
child pornography? Does he have to explain to her what
child pornography is?”). 9 Evans has several convictions for
being a felon in possession of a firearm; must he disclose
that there is a risk he may have a gun? To whom must he
make this disclosure? Only to social acquaintances, or also
to coworkers? If he goes to a bank in order to open a savings
account and meets with a bank employee, must he disclose
that he might have a gun? He has no way of knowing.
The government argues that this condition does not leave
Evans guessing because it “requires consultation with the
probation officer.” But “[a] vague supervised release
condition ‘cannot be cured by allowing the probation officer
an unfettered power of interpretation, as this would create
one of the very problems against which the vagueness
doctrine is meant to protect, i.e., the delegation of “basic
policy matters to policemen for resolution on an ad hoc and
9
The government cites United States v. Nash, in which the Eleventh
Circuit upheld this condition. 438 F.3d 1302, 1306–07 (11th Cir. 2006).
However, the Eleventh Circuit, apparently in accordance with its case
law, merged the vagueness and substantive reasonableness inquiries into
one hybrid determination that the condition was “undeniably related” to
the appellant’s offenses. Id. at 1307 (quoting United States v. Taylor,
338 F.3d 1280, 1285 (11th Cir. 2003)). Our case law keeps these
inquiries separate, see, e.g., Wolf Child, 699 F.3d at 1090–91, and so the
relevance of Nash to this vagueness challenge is limited.
18 UNITED STATES V. EVANS
subjective basis.”’” Soltero, 510 F.3d at 867 n.10 (alteration
omitted) (quoting Loy, 237 F.3d at 266). The language of
the condition must provide some determinate guidance to
Evans’s probation officer, as well as to Evans.
“A probationer must be put on clear notice of what
conduct will (and will not) constitute a supervised release
violation.” Id. Indeed, the Sentencing Commission
recognized as much when it amended the applicable
guideline to remove the ambiguous phrase “personal history
or characteristics” and to clarify that a probation officer may
only require a defendant to notify specific persons of specific
risks that the defendant poses to those persons. See U.S.
Sentencing Guidelines Manual § 5D1.3(c)(12) (“If the
probation officer determines that the defendant poses a risk
to another person (including an organization), the probation
officer may require the defendant to notify the person about
the risk and the defendant shall comply with that
instruction.”). Accordingly, we remand for the district court
to modify Standard Condition 13 in accordance with this
opinion.
III. Factual Dispute During Revocation Hearing
Evans’s final claim of error is that the district court was
required to resolve a factual issue that was presented at his
revocation hearing: namely, whether his probation officer’s
allegation that Evans possessed a gun in April 2015 was true.
Evans objected to this allegation and presented two sworn
declarations contesting it. Federal Rule of Criminal
Procedure 32(i)(3)(B) requires a sentencing court to resolve
such factual disputes or determine explicitly that resolving
the dispute is unnecessary. See United States v. Doe,
705 F.3d 1134, 1153 (9th Cir. 2013). In general, Rule 32.1,
not Rule 32, governs revocation proceedings, see United
States v. Urrutia-Contreras, 782 F.3d 1110, 1112 (9th Cir.
UNITED STATES V. EVANS 19
2015), and Rule 32.1 does not include an analogue to Rule
32(i)(3)(B). However, “where Rule 32.1 is silent with
respect to the matters that must be considered by a district
court in imposing a sentence for violating the terms of
supervised release, Rule 32 may be used to ‘fill in the gap’
in Rule 32.1.” Id. at 1113.
Evans argues that we should read into Rule 32.1 an
analogous requirement that a district court in a revocation
proceeding must resolve factual disputes or determine
explicitly that such resolution is unnecessary. We need not
decide this question because any error by the district court in
failing to resolve the April 2015 allegation was harmless.
The district court did not refer to the allegation in
determining Evans’s sentence; rather, it placed great weight
on both Evans’s criminal history and the instant violation,
his admitted possession of a firearm in July 2015. Thus, we
are satisfied that any error in failing to resolve the factual
allegation had no effect on the court’s decision.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
sentence for the violation of supervised release and vacate
and remand the sentence on the substantive offense for the
district court to correct the challenged conditions of
supervised release. Each party shall bear its own costs on
appeal. Fed. R. App. P. 39(a)(4).
AFFIRMED in part and VACATED AND
REMANDED in part.
20 UNITED STATES V. EVANS
IKUTA, Circuit Judge, dissenting:
In the face of myriad theories attacking the very idea that
words can convey meaning, the Supreme Court has made it
clear that a statute is not unconstitutionally vague merely
because it lacks “mathematical certainty.” Grayned v. City
of Rockford, 408 U.S. 104, 110 (1972). Rather than follow
the Supreme Court’s guidance, however, the majority today
erroneously invalidates three standard conditions of
supervised release that have been applied for three decades
without giving rise to any confusion. Therefore, I dissent as
to Part II.B. 1
I
The majority’s error stems from its misunderstanding of
the Supreme Court’s void-for-vagueness doctrine.
Recognizing that legal advocates can easily argue that
statutory words or phrases are ambiguous or lack discernible
meaning, the Supreme Court has carefully limited the
doctrine and warned appellate courts that the Constitution
“does not require impossible standards,” United States v.
Petrillo, 332 U.S. 1, 7 (1947), or expect “perfect clarity and
precise guidance,” Holder v. Humanitarian Law Project,
561 U.S. 1, 19 (2010) (quoting United States v. Williams,
553 U.S. 285, 304 (2008))
The Supreme Court has erected several signposts
marking the limits of the void-for-vagueness doctrine. First,
the Supreme Court has told us not to impose “impossible
standards of specificity.” See Jordan v. De George, 341 U.S.
223, 231 (1951). “[C]ondemned to the use of words, we can
never expect mathematical certainty from our language.”
1
I concur as to parts I, II.A, and III of the majority opinion.
UNITED STATES V. EVANS 21
Hill v. Colorado, 530 U.S. 703, 733 (2000) (quoting
Grayned, 408 U.S. at 110); see also Jordan, 341 U.S. at 232
(“[D]oubt as to the adequacy of a standard in less obvious
cases does not render that standard unconstitutional for
vagueness.”). Language “marked by ‘flexibility and
reasonable breadth, rather than meticulous specificity’” is
not unconstitutionally vague so long as “it is clear what the
ordinance as a whole prohibits.” Grayned, 408 U.S. at 110
(quoting Esteban v. Cent. Mo. State Coll., 415 F.2d 1077,
1088 (8th Cir. 1969)). Further, any concern that a statute
“fails to provide people of ordinary intelligence” an
understanding of what conduct it prohibits is ameliorated
when the statute contains a scienter requirement. Hill,
530 U.S. at 732. “[T]he Court has recognized that a scienter
requirement may mitigate a law’s vagueness, especially with
respect to the adequacy of notice . . . that [the] conduct is
proscribed.” Vill. Of Hoffman Estates v. Flipside, Hoffman
Estates, Inc., 455 U.S. 489, 499 (1982); see Holder, 561 U.S.
at 21 (“[T]he knowledge requirement of the statute further
reduces any potential for vagueness[.]”).
Second, courts should be reluctant to entertain facial
vagueness challenges based on hypothetical situations. See
Hoffman Estates, 455 U.S. at 495 n.7 (“[V]agueness
challenges to statutes which do not involve First Amendment
freedoms must be examined in the light of the facts of the
case at hand.” (alteration in original) (quoting United States
v. Mazurie, 419 U.S. 544, 550 (1975))). Instead, courts
should limit themselves to determining whether a statute is
vague as applied to the challenger’s particular situation. See
Gonzales v. Carhart, 550 U.S. 124, 167–68 (2007) (scolding
circuit courts for entertaining facial attacks against a state
statute, and instructing that “[a]s-applied challenges are the
basic building blocks of constitutional adjudication”
(alteration in original) (quoting Richard H. Fallon Jr, As-
22 UNITED STATES V. EVANS
Applied and Facial Challenges and Third-Party Standing,
113 Harv. L. Rev. 1321, 1328 (2000))). In a pre-
enforcement challenge, a court considers whether the
“statutory terms are clear in their application to plaintiffs’
proposed conduct,” not how the statute might apply to the
conduct of others. Holder, 561 U.S. at 21. A facial
challenge cannot succeed when “the ordinance is sufficiently
clear as applied to” the challenger. Hoffman Estates,
455 U.S. at 500. 2
Even when a challenger brings a facial challenge to a
statute that is claimed to interfere with the challenger’s right
of free speech or of association where “a more stringent
vagueness test should apply,” id. at 499, “speculation about
possible vagueness in hypothetical situations not before the
Court will not support a facial attack on a statute when it is
surely valid ‘in the vast majority of its intended
application,’” Hill, 530 U.S. at 733 (quoting United States v.
Raines, 362 U.S. 17, 23 (1960)). A statutory term is not
invalid just because a challenger “can conjure up
hypothetical cases” that put the term’s meaning in question.
Id. (quoting American Commc’ns Assn v. Douds, 339 U.S.
382, 412 (1950)). “[A]djudication of the reach and
2
In considering whether the residual clause in the definition of
“violent felony” in the Armed Career Criminal Act was
unconstitutionally vague, the Court explained that it was required to use
the categorical approach and assess “whether a crime qualifies as a
violent felony ‘in terms of how the law defines the offense and not in
terms of how an individual offender might have committed it on a
particular occasion.’” Johnson v. United States, 135 S. Ct. 2551, 2557
(2015) (quoting Begay v. United States, 553 U.S. 137, 141 (2008)). Only
in this context did the Court decline to consider “the risk posed by the
particular conduct in which the defendant engaged” rather than “the risk
posed by the ordinary case of the defendant’s crime.” Id. at 2562.
Johnson did not alter the rule disfavoring challenges based on
hypotheticals that do not apply to the challenger’s proposed conduct.
UNITED STATES V. EVANS 23
constitutionality of [the statute] must await a concrete fact
situation.” Holder, 561 U.S. at 25 (second alteration in
original) (quoting Zemel v. Rusk, 381 U.S. 1, 20 (1965)).
Third, the Supreme Court places great weight on whether
a statutory phrase or term has caused prior problems. For
instance, in rejecting a vagueness challenge to the phrase
“crime involving moral turpitude,” Jordan held it was
“significant that the phrase has been part of the immigration
laws for more than sixty years,” and had not given rise to
problems in interpretation. 341 U.S. at 229. Likewise, the
Court upheld a tax evasion statute against a vagueness
challenge because “there ha[d] not been any apparent
general confusion bespeaking inadequate statutory
guidance” for many years, and therefore “[a] finding of
unconstitutional uncertainty . . . would be a negation of
experience and common sense.” United States v. Ragen,
314 U.S. 513, 524 (1942). In contrast, the Court invalidated
the definition of “violent felony” in the Armed Career
Criminal Act’s residual clause because the “Court’s repeated
attempts and repeated failures to craft a principled and
objective standard out of the residual clause confirm[ed] its
hopeless indeterminacy.” Johnson, 135 S. Ct. at 2558.
Guided by these signposts, the Supreme Court has
rejected numerous vagueness challenges. Thus in Holder,
the Court overruled the Ninth Circuit, holding that the terms
“training,” “expert advice or assistance,” “service,” and
“personnel” in a statute criminalizing the provision of
material support to terrorists were “clear in their application
to plaintiffs’ proposed conduct.” 561 U.S. at 21; see also
Hill, 530 U.S. at 732–33 (upholding an ordinance precluding
persons from approaching an abortion clinic to engage in
“protest, education, or counseling” against a vagueness
challenge, because “it is clear what the ordinance as a whole
24 UNITED STATES V. EVANS
prohibits” (quoting Grayned, 408 U.S. at 110)); Williams,
553 U.S. at 289–90, 304–06 (upholding a statute
criminalizing the possession and distribution of material “in
a manner that reflects the belief or that is intended to cause
another to believe” that the material at issue contains child
pornography (quoting 18 U.S.C. § 2252(A)(a)(3)(B)));
Jordan, 341 U.S. at 231 n.15 (collecting cases rejecting
vagueness challenges). In doing so, the Court rejected the
idea that a term is vague just because, when viewed in
isolation, a challenger can imagine the potential for
ambiguity. See Holder, 561 U.S. at 21; Hill, 530 U.S. at 733;
Williams, 553 U.S. at 304–06.
II
In light of these principles, the majority’s determination
that Standard Conditions 4, 5, and 13 are void for vagueness
is contrary to the Supreme Court’s guidance. In entertaining
a disfavored facial vagueness challenge, the majority
imposes an “impossible standard of specificity,” discounts
the ameliorative effect of a mens rea requirement, relies on
hypothetical cases and engages in speculation, and ignores
the long and untroubled judicial application of these
conditions.
These errors are clear in the majority’s analysis of
Standard Condition 4, which requires Evans to “support his
. . . dependents and meet other family responsibilities.”
Relying on the Seventh Circuit’s conclusion, the majority
claims this condition is void for vagueness on its face
because the phrase “other family responsibilities” lacks
meaning. Maj. at 14–15 (citing United States v. Kappes,
782 F.3d 828, 849 (7th Cir. 2015)). But Evans fails to
explain why this condition is unclear as applied to him. See
Holder, 561 U.S. at 22–23 (holding that plaintiffs cannot
prevail in a vagueness challenge by “pointing to hypothetical
UNITED STATES V. EVANS 25
situations designed to test the limits” of certain statutory
terms, when their own case presented no such problem).
Neither Evans nor his probation officer should have trouble
understanding that Standard Condition 4 requires Evans to
provide support to his four children and to discharge family
responsibilities of analogous significance. The Tenth
Circuit likewise concluded that no one “would have trouble
understanding and applying” Standard Condition 4 “in a real
world setting.” United States v. Llantada, 815 F.3d 679, 682
(10th Cir. 2016) (upholding the condition). Although the
condition might “involve ambiguity in particular
circumstances” a defendant “would understand what was
required.” United States v. Munoz, 812 F.3d 809, 818 (10th
Cir. 2016). Thus, the majority’s confusion about whether
“responsibilities” could encompass trivial activities such as
washing dishes embodies the sort of hypertechnical game-
playing the Supreme Court has rejected. Maj. at 14–15. See
Williams, 553 U.S. at 305; Hill, 530 U.S. at 733. “The
likelihood that anyone would not understand” what this
condition requires “seems quite remote.” Hill, 530 U.S. at
732.
Moreover, because Evans knows his own family
situation, any vagueness is ameliorated by the mens rea
requirement we read into Condition 4. See Holder, 561 U.S.
at 21; Hill, 530 U.S. at 732. We interpret standard conditions
of supervised release “consistently with the ‘well-
established jurisprudence under which we presume
prohibited criminal acts require an element of mens rea.’”
United States v. Napulou, 593 F.3d 1041, 1045 (9th Cir.
2010) (quoting United States v. Vega, 545 F.3d 743, 750 (9th
Cir. 2008)). Further, should an actual (as opposed to
hypothetical) question arise regarding the scope of a
condition, Evans, like all defendants subject to the
supervised release conditions, has “an additional layer of
26 UNITED STATES V. EVANS
protection.” United States v. Phillips, 704 F.3d 754, 768
n.13 (9th Cir. 2012). If Evans is charged with violation of a
condition of supervised release, he may raise an as-applied
challenge in district court, and the district court “will
examine the findings to [e]nsure that [his] due process right
to notice of prohibited conduct has been observed and to
protect him from unknowing violations.” Id. (alterations in
original) (quoting United States v. Romero, 676 F.2d 406,
407 (9th Cir. 1982)); see also Vega, 545 F.3d at 750 (same).
The majority’s invalidation of the other conditions is
erroneous for the same reasons. According to the majority,
Standard Condition 5, which requires that he “work
regularly at a lawful occupation, unless excused by the
probation officer for schooling, training, or other acceptable
reasons,” is ambiguous because the word “regularly” has no
clear definition. Maj. at 15–16. But in context, people of
common intelligence would understand that if Evans gets a
job, he must maintain a good attendance record on a regular
basis. See Hoffman Estates, 455 U.S. at 495 n.7 (law is not
vague if “it requires a person to conform his conduct to an
imprecise but comprehensible normative standard” (quoting
Coates v. City of Cincinnati, 402 U.S. at 614)). The Tenth
Circuit agreed, holding that the phrase “work regularly” was
not impermissibly vague because “district courts impose this
condition with virtual uniformity.” Munoz, 812 F.3d at 814;
see also Llatanda, 815 F.3d at 682.
The majority, by contrast, is puzzled because the word
“regularly” does not differentiate between full-time or part-
time work, and does not clarify whether it means “the same
amount” of work each week or month. Maj. at 16. The
Supreme Court has had little patience with speculation about
possible vagueness in hypothetical conditions. See Holder,
561 U.S. at 22–23 (“Whatever force these arguments might
UNITED STATES V. EVANS 27
have in the abstract, they are beside the point here. Plaintiffs
. . . cannot seek refuge in imaginary cases that straddle the
boundary between [two statutory terms]” and raise only
“theoretical doubts” about how the statute applies); Hoffman
Estates, 455 U.S. at 504 (“Although it is possible that
specific future applications . . . may engender concrete
problems of constitutional dimension, it will be time enough
to consider any such problems when they arise.” (alterations
in original) (quoting Joseph E. Seagram & Sons, Inc. v.
Hostetter, 384 U.S. 35, 52 (1966))). And the Court has
rejected the argument that standards “marked by flexibility
and reasonable breadth” are unconstitutional. Grayned,
408 U.S. at 110 (quoting Esteban, 415 F.3d at 1088); see
also Johnson, 135 S. Ct. at 2561 (holding that laws are not
unconstitutionally vague merely because they “call for the
application of a qualitative standard such as ‘substantial risk’
to real-world conduct”). We have likewise upheld
supervised release conditions that impose qualitative
restrictions. For instance, we upheld a restriction on
“‘frequent[ing] places’ where illegal drugs are used or sold”
against a vagueness challenge, concluding that under a
“common sense reading,” the word “frequenting” meant
“often or habitually” and did not include “incidental
contact.” Phillips, 704 F.3d at 768 (quoting Merriam-
Webster’s Collegiate Dictionary, 11th Edition (2003)).
Unlike the majority, Phillips did not find it necessary to
strike down this condition on the ground that the word
“frequenting” failed to specify time constraints with
precision. See id.
The majority’s invalidation of Standard Condition 13 is
equally flawed. This condition requires Evans, “[a]s
directed by the probation officer,” to “notify third parties of
risks that may be occasioned by the defendant’s criminal
record or personal history or characteristics.” Evans argues
28 UNITED STATES V. EVANS
that the condition does not define “personal history,”
“characteristics,” or which “risks” must be disclosed. Again,
context eliminates the ambiguity. Evans knows how the
condition applies because he has intimate knowledge of his
own “criminal history,” “criminal record,” and “personal
history.” See United States v. Nash, 438 F.3d 1302, 1307
(11th Cir. 2006) (upholding Condition 13 because
defendant’s “convictions inform[ed] the probation officer as
to which parties ‘may be occasioned’ to be harmed by
[defendant]”); 3 United States v. MacMillen, 544 F.3d 71,
76–77 (2d Cir. 2008) (upholding a similar condition that
authorized the probation office to discuss “third-party risks
with employers” because “the circumstances of the case”
meant that “[p]robation will not be operating in a vacuum
when it considers whether and in what situations an
employer should be informed” of the defendant’s offense).
Again, only the Seventh Circuit and the majority are
confused by the meaning of these common words. Maj. at
16–17 (citing United States v. Hill, 818 F.3d 342, 345 (7th
Cir. 2016); United States v. Thompson, 777 F.3d 368, 379
(7th Cir. 2015)). Further, the condition requires consultation
with a probation officer, which further reduces the
possibility that Evans might be confused by the condition.4
3
The majority contends that Nash is of limited relevance because
the Eleventh Circuit’s inquiry “merged the vagueness and substantive
reasonableness inquiries.” Maj. at 17 n.9. Regardless of its precise
framework, Nash explicitly stated that the defendants’ “previous and
current convictions” gave the probation officer guidance to enforce the
condition. 438 F.3d at 1307.
4
Because the probation officer’s determination regarding the scope
of this requirement is limited by the particulars of Evans’s “criminal
history,” “criminal record,” and “personal history,” the condition does
not give the probation officer unlimited discretion. Cf. United States v.
Soltero, 510 F.3d 858, 867 n.10 (9th Cir. 2007) (holding that a “vague
UNITED STATES V. EVANS 29
See United States v. King, 608 F.3d 1122, 1128–29 (9th Cir.
2010) (“In addition to the bare words of the probation
condition, the probationer may be guided by the further
definition, explanations, or instructions of the district court
and the probation officer.” (quoting Romero, 676 F.2d at
407)).
In fact, until recently, no one doubted that Standard
Conditions 4, 5, and 13 provided people of ordinary
intelligence with fair notice of what was prohibited. Courts
have applied these conditions since the Sentencing
Guidelines were first propounded in 1987. See United States
Sentencing Guidelines Manual § 5B1.4(a)(4), (5), (13) (U.S.
Sentencing Comm’n 1987). There has been no long history
of district or appellate court opinions struggling to “craft a
principled and objective standard” for construing and
applying these conditions. Johnson, 135 S. Ct. at 2558.
Only after close to 30 years of untroubled application did the
Seventh Circuit suddenly detect that Standard Condition 4
and other conditions were unconstitutionally vague on their
face. Kappes, 782 F.3d at 849. 5 And until today, the
supervised release condition ‘cannot be cured by allowing the probation
officer an unfettered power of interpretation’” (quoting United States v.
Loy, 237 F.3d 251, 266 (3d Cir. 2001))). Further, in the event of an
alleged supervised release violation, the district court will be able to
determine if Evans received sufficient notice of prohibited conduct.
Phillips, 704 F.3d at 768 n.13.
5
The majority argues that the fact that the Sentencing Commission
subsequently amended the Guidelines to clarify the language supports
the majority’s conclusion that the original Conditions are vague. Maj. at
13–14, 16, 18. But the Sentencing Commission amended the guidelines
only in response to the Seventh Circuit’s hypothetical concerns, not to
any real-world difficulty. See U.S. Sentencing Comm’n, Amendments
to the Sentencing Guidelines 43–44 (Apr. 28, 2016),
https://www.ussc.gov/sites/default/files/pdf/amendment-process/reader-
30 UNITED STATES V. EVANS
Seventh Circuit’s superficial facial analysis, floating free
from the Supreme Court’s careful framework for
determining when a statute is unconstitutionally vague, has
been repudiated by all other circuits. See Llatanda, 815 F.3d
at 682; Munoz, 812 F.3d at 814; MacMillen, 544 F.3d at 76–
77; Nash, 438 F.3d at 1307. We should have done the same,
and avoided falling into the Seventh Circuit’s error.
III
Because “[i]n most English words and phrases there lurk
uncertainties,” it is always easy to argue that words are
incapable of expressing fixed and determinate concepts.
Robinson v. United States, 324 U.S. 282, 286 (1945). In fact,
such arguments have infected law schools for decades. See
Gary Peller, The Metaphysics of American Law, 73 Cal. L.
Rev. 1151, 1162, 1168–69 (1985); Richard H. Fallon Jr, The
Meaning of Legal “Meaning” and Its Implications for
Theories of Legal Interpretation, 82 U. Chi. L. Rev. 1235,
1254 (2015). That is why the Supreme Court has rejected
any void-for-vagueness test that requires language to have
“mathematical certainty,” Hill, 530 U.S. at 733 (quoting
Grayned, 408 U.S. at 110), or “perfect clarity,” Holder,
561 U.S. at 19 (quoting Williams, 553 U.S. at 304). But the
majority here has fallen into the specificity trap. By relying
on hypotheticals and rhetorical questions, it strikes down
ordinary language that can be clarified through case-by-case
application of the constitutional vagueness doctrine.
I therefore dissent, and would affirm the district court in
full.
friendly-amendments/20160428_RF.pdf. The Sentencing Commission
itself made no finding that the conditions were vague.