United States v. Gregory Monroe ( 2019 )

FILED
NOT FOR PUBLICATION
JAN 04 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50144
Plaintiff-Appellee, D.C. No. 2:17-cr-00657-R-1
v.
MEMORANDUM*
GREGORY MONROE,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted December 7, 2018
Pasadena, California
Before: RAWLINSON and BEA, Circuit Judges, and SETTLE,** District Judge.
Gregory Monroe (Monroe) appeals the district court’s judgment revoking
his supervised release and imposing supervised released conditions.
Charge One of the revocation petition alleged that Monroe violated the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
provision of his supervised release requiring him to reside at, participate in, and
successfully complete a residential substance abuse treatment and counseling
program by failing to enter the designated residential treatment program as directed
by the probation officer. Charge Two alleged that Monroe had used a controlled
substance, as evidenced by laboratory analysis of his urine sample. Monroe denied
Charge One and admitted Charge Two. The district court sustained both
allegations, sentencing Monroe to nine months’ imprisonment, followed by 25
months of supervised release.
We review for abuse of discretion the district court’s revocation of
supervised release. See United States v. Thum, 749 F.3d 1143, 1145 (9th Cir.
2014). When reviewing a sufficiency of the evidence challenge to the revocation of
supervised release, we “ask whether, viewing the evidence in the light most
favorable to the government, any rational trier of fact could have found the
essential elements of a violation by a preponderance of the evidence.” Id. at 1145-
46 (citation and internal quotation marks omitted).
Contrary to Monroe’s contentions, the evidence was sufficient to support a
finding that he failed to enter a residential drug treatment facility on February 23,
2018, a Grade C violation. See U.S.S.G. § 7B1.1. The record reflects that Monroe
failed to enter the drug treatment program on February 23, 2018, as directed by his
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probation officer. See United States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir.
2009) (“[W]e will affirm a district court’s factual finding unless that finding is . . .
without support in inferences that may be drawn from the record.”).
At minimum, Monroe admitted to Charge Two, also a Grade C violation,
see U.S.S.G. § 7B1.1, and one violation of a condition is a sufficient basis for
revocation. See United States v. Daniel, 209 F.3d 1091, 1094, amended, 216 F.3d
1201 (9th Cir. 2000). Thus, even if the district court abused its discretion in
sustaining Charge One, any error was harmless. See United States v. Ali, 620 F.3d
1062, 1074 (9th Cir. 2010) (characterizing error as harmless where “no evidence of
any of these alleged errors, if changed, would result in a shorter sentence”).
Next, Monroe asserts, and the government concedes, that the district court’s
imposition of three unconstitutionally vague standard supervised release conditions
constitutes plain error. See United States v. Evans, 883 F.3d. 1154, 1162-64 (9th
Cir. 2018). Specifically, Monroe objects to the conditions requiring that he
“support his or her dependents and meet other family responsibilities,” “work
regularly at a lawful occupation, unless excused by the probation officer for
schooling, training or other acceptable reasons,” and “notify third parties of risks
that may be occasioned by [his] criminal record or personal history or
characteristics.” Therefore, we strike the unconstitutional text from the district
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court judgment to comport with Evans, 883 F.3d at 1162-64.1 See United States v.
Long, 301 F.3d 1095, 1108 (9th Cir. 2002) (per curiam) (affirming modified
district court judgment).
We interpret the district court’s order entered on May 8, 2018, as
incorporating the special condition requiring successful completion of a residential
drug treatment and counseling program, entered on January 10, 2018. This
interpretation does not authorize separate placements into drug treatment and
mental health facilities. So construed, the district court’s specification of a
residential substance abuse and counseling program does not impermissibly
delegate to the probation officer whether a defendant must be committed to
inpatient or outpatient treatment. See United States v. Esparza, 552 F.3d 1088,
1091 n.5 (9th Cir. 2009) (per curiam).
Because the district court’s judgment has been modified to comport with
Evans and Esparza, and no remand is required, we need not address Monroe’s
request to assign this case to a different district judge.
1
The respective conditions should read: “defendant shall support his or her
dependents,” see Evans, 883 F.3d at 1162-63; “defendant shall work at a lawful
occupation unless excused by the probation officer for schooling, training, or other
acceptable reasons,” see id. at 1163; and “as determined and directed by the
probation officer, the defendant shall notify specific persons or organizations of
specific risks posed to those persons or organizations by the defendant.” See id. at
1164.
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JUDGMENT AFFIRMED AS MODIFIED.
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