United States v. James Many White Horses ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30018
Plaintiff-Appellee,
D.C. No.
v. 9:07-cr-00063-
DWM-1
JAMES CLEVELAND MANY WHITE
HORSES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted December 12, 2019
Seattle, Washington
Filed July 6, 2020
Before: Michael Daly Hawkins and M. Margaret
McKeown, Circuit Judges, and Robert W. Pratt, * District
Judge.
Opinion by Judge McKeown
*
The Honorable Robert W. Pratt, United States District Judge for
the Southern District of Iowa, sitting by designation.
2 UNITED STATES V. MANY WHITE HORSES
SUMMARY **
Criminal Law
The panel affirmed the district court’s imposition of a
special condition of supervised release upon the defendant,
an enrolled member of the Blackfeet Indian Nation, after he
violated the conditions of his probation through alcohol and
drug-related infractions.
The special condition prohibits the defendant from
residing in the town of Browning, Montana, which is the
tribal headquarters of the Blackfeet Nation, or visiting the
town without prior approval of his probation officer.
The panel rejected the defendant’s contentions that the
special condition is tantamount to an illegal banishment or
exclusion from the Blackfeet Reservation and that it
infringes the tribal sovereignty and right of self-government
of the Blackfeet Nation. The panel also held that the
residency restriction is substantively reasonable.
COUNSEL
Colin M. Stephens (argued), Smith & Stephens P.C.,
Missoula, Montana, for Defendant-Appellant.
Kalah Anne Paisley (argued) and Timothy A. Tatarka,
Assistant United States Attorneys; Katherine Cole, Legal
**
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. MANY WHITE HORSES 3
Intern; Kurt G. Alme, United States Attorney; United States
Attorney’s Office, Great Falls, Montana; for Plaintiff-
Appellee.
OPINION
McKEOWN, Circuit Judge:
James Many White Horses, an enrolled member of the
Blackfeet Indian Nation, challenges a special condition of
his term of supervised release, imposed by the district court
after he repeatedly violated the conditions of his probation
through alcohol and drug-related infractions. Special
Condition 11 prohibits Many White Horses from residing in
the town of Browning, Montana, or visiting the town without
the prior approval of his probation officer. That condition is
coupled with another, requiring short-term residential
counseling treatment in Browning. Browning is the tribal
headquarters of the Blackfeet Nation and the sole
incorporated town on the Blackfeet Reservation. Many
White Horses argues that the district court lacked the
authority to impose Special Condition 11, and that it is
substantively unreasonable because it involves a greater
deprivation of liberty than is reasonably necessary to
accomplish the goals of supervised release.
It is well settled that a district court may impose a
geographic or residency restriction when it is properly
supported by the record and substantively reasonable. See
United States v. LaCoste, 821 F.3d 1187, 1192–93 (9th Cir.
2016). Because the condition “involves no greater
deprivation of liberty than is reasonably necessary,” we
affirm. See 18 U.S.C. § 3583(d)(2).
4 UNITED STATES V. MANY WHITE HORSES
BACKGROUND
In 2008, James Many White Horses pled guilty to
conspiracy to possess with intent to distribute
methamphetamine. He was sentenced to 78 months in
custody and 180 months of supervised release. Between
2014 and 2018, Many White Horses violated the terms of his
supervised release nine times, which resulted in four
revocations. Eight violations involved the use of either
alcohol, methamphetamine, or another illegal substance, and
all but one took place in Browning, where Many White
Horses resides much of the time.
In 2019, while on supervised release, Many White
Horses used methamphetamine in Great Falls, Montana.
While still intoxicated, he made the two-hour drive back to
his mother’s home in Browning. When he arrived home, his
mother called his probation officer to report the supervised
release violation.
As a result of this violation, the district court revoked
supervised release and imposed a sentence of six months
custody and a new term of five years of supervised release.
The district court also imposed a set of “Special Conditions”
on the term of supervised release.
Special Condition 11—the subject of this appeal—
places the following restrictions upon Many White Horses:
The defendant shall not reside within
Browning, Montana. The defendant shall not
enter the town of Browning, Montana
without the prior approval of the supervising
probation officer. To obtain approval, the
defendant shall provide the probation officer
with the purpose of his visit to Browning, the
UNITED STATES V. MANY WHITE HORSES 5
expected duration of his stay in Browning, a
phone number at which he can be reached
during his stay in Browning, and address(es)
of the place(s) he will visit in Browning, and
a list of persons he intends to see in
Browning. The defendant shall contact the
supervising probation officer as directed
during the defendant’s stay in Browning.
The court also imposed Special Condition 12, which requires
Many White Horses to “participate in the short-term
residential treatment program at Crystal Creek in Browning,
Montana.”
ANALYSIS
I. The Residency Restriction is a Legitimate Condition
of Supervised Release
Many White Horses first claims that the geographic
restriction exceeded the legal authority of the district court
because the condition diminished the sovereignty of the
Blackfeet Nation. Although Many White Horses did not
raise this argument at the time of sentencing, we review de
novo the legal authority of the district court to impose the
condition. See United States v. Watson, 582 F.3d 974, 981
(9th Cir. 2009) (“Whether a supervised release condition
illegally exceeds the permissible statutory penalty or violates
the Constitution is reviewed de novo.”).
When a district court revokes a defendant’s term of
supervised release, the new sentence may include an
additional term of supervised release. See 18 U.S.C.
§ 3583(h). Congress has specifically authorized district
courts to impose special conditions of supervised release
requiring that a defendant “refrain from frequenting
6 UNITED STATES V. MANY WHITE HORSES
specified kinds of places or from associating unnecessarily
with specified persons; . . . reside in a specified place or area,
or refrain from residing in a specified place or area; . . . [and]
report to a probation officer as directed by the court or the
probation officer.” 18 U.S.C. § 3563(b)(6), (13), (15).
Consistent with this statutory authority, we have held that
“residency restrictions are unquestionably permissible as a
general matter.” LaCoste, 821 F.3d at 1192.
Many White Horses does not dispute that “the court
generally had authority to include a geographic restriction,”
but goes on to argue that it cannot be “one that intrudes on
his status as a dual citizen of both the United States and the
Blackfeet Nation, nor one that intrudes on the sovereignty of
the Blackfeet Nation.” He challenges Special Condition 11
on the grounds that it is tantamount to an illegal banishment
or exclusion from the Blackfeet Reservation, and that it
infringes the tribal sovereignty and right of self-government
of the Blackfeet Nation. Neither argument is persuasive.
A. The Condition is not an Illegal Banishment or
Exclusion
To begin, Special Condition 11 is not a de facto
banishment or exclusion from the Blackfeet Reservation.
The condition allows Many White Horses to freely travel or
reside in all but one quarter square mile of the 1.5 million
acres of reservation land, restricting only his access to
Browning itself. He is also free to visit his family, to
participate in tribal life, and to receive tribal services in
Browning—he simply must seek advance approval from his
probation officer so that the officer knows his location and
can evaluate the potential risks of his visit. Finally, Special
Condition 12 affirmatively requires Many White Horses to
visit Browning in order to participate in the short-term
residential treatment program at Crystal Creek, a fact that
UNITED STATES V. MANY WHITE HORSES 7
only underscores that Many White Horses is not banished or
expelled from even Browning itself.
Many White Horses offers two cases to bolster his
argument. The first, United States v. Castillo-Burgos,
involved a sua sponte deportation order that exceeded
statutory authority. 501 F.2d 217 (9th Cir. 1974). Many
White Horses, by contrast, has not been deported. The
second, United States v. Abushaar, is similarly unhelpful.
761 F.2d 954 (3d Cir. 1985). Abushaar was a Syrian citizen
convicted of making a fraudulent application for status as a
permanent resident. The Third Circuit reversed the order
requiring him to serve his probation outside of the United
States, finding no support for the claim that such a condition
had a rehabilitative role. Citing to Castillo-Burgos, the court
also held that the condition functioned as an illegal
banishment condition because it effectively deported
Abushaar from the United States—an act that must be
carried out by the Immigration and Naturalization Service.
Id. at 960–61.
Unlike in Abushaar, there is ample support for the
justification that Special Condition 11 will serve to support
Many White Horses’s rehabilitation and to protect the
community of Browning from his destructive behavior. The
condition also brings Many White Horses under increased
supervision by his probation officer, not less. Finally, the
condition does not equate to deportation.
Rather than an illegal banishment, Special Condition 11
is instead almost identical to the condition of supervised
release that the Eleventh Circuit upheld in United States v.
Cothran, 855 F.2d 749 (11th Cir. 1988). Cothran was
sentenced for willfully distributing cocaine to a minor. As a
condition of his probation, he was required to remain outside
of Fulton Country, Georgia, unless he received the consent
8 UNITED STATES V. MANY WHITE HORSES
of his probation officer. The Eleventh Circuit upheld the
condition and explained that Cothran’s temporary removal
from the county was not analogous to the illegal
“banishment” conditions struck down in cases where the
defendant was deported for the probationary period. Id. at
752. The court went on to note that the condition still
allowed Cothran to visit the county with the permission of
his probation officer, and that this arrangement allowed
Cothran access to educational and employment
opportunities that he might require. Id. Likewise, the
condition here is neither a banishment nor exclusion from
the Blackfeet Reservation.
B. Tribal Sovereignty of the Blackfeet Nation
Although the Blackfeet Nation is “physically within the
territory of the United States and subject to ultimate federal
control, they nonetheless remain a separate people, with the
power of regulating their internal and social relations.”
United States v. Wheeler, 435 U.S. 313, 322 (1978) (internal
quotation marks removed). Consistent with that power, “[i]n
many cases, a tribe’s decision to temporarily exclude a
member will be another expression of its sovereign authority
to determine the makeup of the community.” Tavares v.
Whitehouse, 851 F.3d 863, 876 (9th Cir. 2017). Many White
Horses overreads these general principles of tribal
sovereignty in claiming that Special Condition 11 usurps the
Blackfeet Nation’s authority to exercise control over its
members through the power to banish or exclude tribal
members.
Many White Horses’s argument conflates two distinct
issues: the authority of the Blackfeet tribe over its own
members and the authority of the federal government over
its citizens, including tribal members. Many White Horses
mistakenly assumes that the condition functions as a
UNITED STATES V. MANY WHITE HORSES 9
banishment from tribal lands, rather than as a temporary
restraint on his ability to visit a tiny portion of the reservation
absent permission from his probation officer. See Cothran,
855 F.2d at 752 (temporary restraint on entering county
without probation officer’s permission is not an illegal
banishment). An external condition that is not a banishment
does not conflict with the sovereign authority of the
Blackfeet tribe to govern the banishment or exclusion of its
members.
The tribe’s authority does not preclude the federal
government from exercising its own authority over Many
White Horses, including incarcerating him, conscripting him
into the armed forces, or imposing geographic restrictions
requiring that he not reside, or travel to, certain tribal lands
without prior approval. These two sources of sovereignty—
federal and tribal—co-exist in our system of government.
Here, the federal government’s exercise of authority over
Many White Horses does not infringe the inherent
sovereignty of the Blackfeet Nation.
For these reasons, the district court did not exceed its
legal authority when it imposed Special Condition 11.
II. The Residency Restriction is Substantively
Reasonable
A condition of supervised release must be both free of
procedural error and substantively reasonable. Watson,
582 F.3d at 981. Many White Horses does not challenge
procedural validity, as he concedes that the district court
sufficiently explained its reasons for imposing the condition
at sentencing. We therefore turn to the question of
substantive reasonableness, which we review for abuse of
discretion. See United States v. Napulou, 593 F.3d 1041,
1044 (9th Cir. 2010).
10 UNITED STATES V. MANY WHITE HORSES
While a district court has broad discretion to impose
special conditions of supervised release, the conditions must
be “reasonably related” to deterrence, protection of the
public, and/or rehabilitation and cannot involve “a greater
deprivation of liberty than is reasonably necessary for the
purposes [of deterrence, protection of the public, and/or
rehabilitation].” 18 U.S.C. § 3583(d)(1)–(2). The condition
here merits careful review. See United States v. Wolf Child,
699 F.3d 1082, 1089 (9th Cir. 2012) (“Conditions affecting
fundamental rights . . . are reviewed carefully.”) (internal
quotation marks and citation removed); see also Watson,
582 F.3d at 983.
The district court imposed the condition only after nine
violations resulted in four revocations of Many White
Horses’s supervised release. Since 2014, Many White
Horses has engaged in a clear pattern of destructive behavior
while in Browning, including repeated use of
methamphetamine and alcohol, drunken and disorderly
conduct, and physical and domestic abuse—all of which
took place while he was on release. After this appeal was
filed, but before oral argument, Many White Horses’s term
of supervised release was revoked yet again after he received
permission to visit Browning, and while there, used
methamphetamine and became violent.
In view of Many White Horses’s pattern of relapse and
destructive behavior, the district court faced the need to craft
a restriction that would address both rehabilitation and
public safety. The court recognized that Browning was a
magnet and a trigger for behavior that violated the conditions
of Many White Horses’s supervised release. In fact, at his
most recent revocation hearing, even Many White Horses
himself acknowledged, “I think you’re right, your Honor,”
when the district court explained that the defendant was
UNITED STATES V. MANY WHITE HORSES 11
unable to prevent himself from using drugs and violating the
conditions of his supervised release while living in
Browning. Many White Horses’s suggestion that less
restrictive conditions would be sufficient, such as a
prohibition on using drugs and alcohol, simply falls flat in
the face of his past conduct. The district court gave Many
White Horses numerous chances to serve his term of
supervised release under lesser restrictions, and he has
demonstrated that they are insufficient.
The court was also cognizant of Many White Horses’s
need for rehabilitation and sensitive to the significance of
Browning in his life. In light of that significance, the court
ordered Many White Horses to attend a temporary
residential drug treatment program at a facility in Browning.
“We have repeatedly upheld residency and travel
conditions aimed at keeping a convicted defendant away
from circumstances that might lead him to offend again.”
Watson, 582 F.3d at 983. Many White Horses admittedly
has “important . . . and unique” connections to Browning,
the reservation’s only incorporated municipality. Id. at 984.
This case thus merits a closer look than the classic use of a
residential condition that we have long endorsed. 1 Even so,
Special Condition 11 is neither too broad geographically nor
does it impose an impermissible burden on Many White
1
Watson involved a condition barring the defendant from entering
San Francisco. 582 F.3d at 984. For all of that city’s charms, its
relationship to a resident cannot compare to the unique role a federal
reservation holds in Indian life. These bonds, coupled with the tribal
resources that cannot be accessed elsewhere, foster a connection far more
important and unique than a resident’s typical connection to a
municipality.
12 UNITED STATES V. MANY WHITE HORSES
Horses’s liberty given his repeated violation of lesser
restrictions.
Unlike the residency condition upheld by the Sixth
Circuit in United States v. Alexander on a very similar set of
facts, Many White Horses is not required to live hundreds of
miles from his family and community. 509 F.3d 253, 255–
56 (6th Cir. 2007) (upholding a residency restriction that
required defendant to live hundreds of miles from his family
and his federally-recognized Indian community without the
ability to visit after previously imposed conditions of
supervised release had proven ineffective). Instead, he is
merely prohibited from living in the town of Browning itself.
Many White Horses remains free to reside in a nearby
unincorporated town, East Glacier Park Village, or in one of
the other numerous small towns surrounding the reservation.
With the permission of his probation officer, Many
White Horses is also free to visit Browning for any other
purpose, so long as he “provide[s] the probation officer with
the purpose of his visit to Browning, the expected duration
of his stay in Browning, a phone number at which he can be
reached during his stay in Browning, and address(es) of the
place(s) he will visit in Browning, and a list of persons he
intends to see in Browning.” The fact that the geographic
restriction is not absolute, and Many White Horses may visit
with the approval of his probation officer, “helps to mitigate
the severity of the limitation.” Watson, 582 F.3d at 984(contrasting a geographic restriction that allows for
approved visitation with more restrictive conditions).
This requirement does not unduly restrict Many White
Horses’s ability to visit his family and community, to
participate in tribal life, to receive treatment in Browning,
and to live nearby. Far from a de facto banishment, Special
Condition 11 is a targeted set of requirements that preserves
UNITED STATES V. MANY WHITE HORSES 13
his ability to visit Browning while still providing his
probation officer with tools to help protect Many White
Horses and his community from his self-destructive
behavior. The district court chose a path that “involve[d] no
greater deprivation of liberty” than was reasonably
necessary under the circumstances and was reasonably
related to deterrence, protection of the public, and
rehabilitation. See 18 U.S.C. § 3583(d)(1)–(2).
AFFIRMED.