United States v. Gregory Walker ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 17 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10522
Plaintiff-Appellee, D.C. No. 2:14-cr-00073-GMN
v.
MEMORANDUM*
GREGORY WALKER,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Gregory Walker appeals from the district court’s judgment and challenges
the 11-month sentence and two special conditions of supervised release imposed
upon revocation of supervised release. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm as to the custodial sentence but remand as to the supervised
*
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).
release conditions.
Walker contends that the district court procedurally erred by relying on
inapplicable statutory factors – deterrence and protection of the public – and by
relying on the erroneous findings that Walker had committed a crime under
supervision, that he was in a halfway house during his supervision, and that the
halfway house helped or could have helped him obtain photo identification. We
review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,
1108 (9th Cir. 2010), and conclude that there is none. Walker mischaracterizes the
district court’s remarks at sentencing. The record shows that the district court did
not believe that Walker had been residing in a halfway house that could have
helped him obtain identification, or that he committed a crime while on supervised
release. Moreover, the district court did not plainly err by invoking the need to
deter future criminal conduct and protect the public. See 18 U.S.C.
§§ 3553(a)(2)(B), (C), 3583(e); United States v. Miqbel, 444 F.3d 1173, 1181 &
n.19 (9th Cir. 2006).
Walker also contends that his sentence is substantively unreasonable. The
district court did not abuse its discretion in imposing Walker’s sentence. See Gall
v. United States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable
in light of the 18 U.S.C. § 3583(e) factors and the totality of the circumstances.
See Gall, 552 U.S. at 51.
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Finally, Walker contends that the written judgment is in conflict with the
court’s oral pronouncement of two special conditions of supervised release. The
government concedes, and we agree, that special condition number one in the
written judgment, regarding substance abuse treatment, directly conflicts with the
court’s oral pronouncement, which made clear that Walker should undergo
substance abuse treatment only if he were first evaluated and determined to need
such treatment. We, therefore, remand for the district court to conform the
judgment with the oral pronouncement of that condition. See United States v.
Hicks, 997 F.2d 594, 597 (9th Cir. 1993). With respect to special condition
number two, on remand, the district court shall clarify whether it intended that
Walker be evaluated to determine if he requires mental health treatment before he
is required to participate in such treatment. If the court intended to require
evaluation before treatment, it shall modify condition number two of the written
judgment to reflect that requirement.
AFFIRMED; REMANDED with instructions.
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