United States v. Juan Camarena ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30236
Plaintiff-Appellee,
D.C. No.
v. CR-19-04-DWM
JUAN JOSE CAMARENA, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
For the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted October 5, 2020
Seattle, Washington
Before: CALLAHAN and CHRISTEN, Circuit Judges, and RAKOFF,** District
Judge.
Defendant-Appellant Juan Jose Camarena appeals from a final judgment of
the United States District Court for the District of Montana (Molloy, J.), imposing a
special condition on his supervised release that prohibits “any contact with anyone
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
who belongs to or is affiliated with gangs or engaged in gang activity.” We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Camarena argues that three aspects of the condition are impermissibly vague
and overbroad, in violation of due process and the First Amendment: (1) the term
“gangs,” (2) the term “any contact,” and (3) the term “affiliated.” Because Camarena
“failed to object to [this condition] of supervised release in the proceedings below,
we review . . . for plain error.” United States v. Johnson, 626 F.3d 1085, 1088–89
(9th Cir. 2010).1
1. Camarena argues that the condition is impermissibly vague and overbroad
because the term “gang,” which is “left undefined by the district court,” could be
read to include groups gathering for both legal and illegal ends. Camarena points to
out-of-circuit precedent holding a similar condition unlawful, see United States v.
Washington, 893 F.3d 1076, 1081 (8th Cir. 2018), but fails to identify any
controlling authority on point. While we have struck down as impermissibly vague
1
Camarena suggests that he “objected to the gang condition in his
[Presentence Report] objection and in his sentencing memorandum.” That is not
so. While Camarena objected to portions of the Presentence Report that indicated
that he had been affiliated with the MS 13 gang, he did not object to the
Presentence Report’s recommended condition that he “shall not have any contact
with anyone affiliated with the MS 13 and/or Sureños gangs.” Nor did he object to
the district court’s imposition of a modified version of that condition—even after
the district court expressly gave him the chance to do so at sentencing. For that
reason, too, we decline Camarena’s request to apply the “pure question of law”
exception to plain error review in this case.
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a condition that banned contact with “disruptive groups,” United States v. Soltero,
510 F.3d 858, 867 (9th Cir. 2007), that does not amount to the sort of controlling
authority that would render the district court’s imposition of the “gang” condition
“clear or obvious” error.
2. Camarena also argues that the condition is overbroad because it forbids not
just “contact” but “any contact,” including incidental contact with individuals
affiliated with gangs. However, courts routinely construe such conditions
“consistent with well-established jurisprudence under which we presume prohibited
criminal acts require an element of mens rea.” United States v. Vega, 545 F.3d 743,
750 (9th Cir. 2008). Applying this presumption, the condition prohibits only
knowing contact with those who belong to or are affiliated with gangs or engaged in
gang activity. Its imposition, therefore, was not in error, much less plain error.
3. Finally, Camarena argues that the condition is impermissibly vague and
overbroad because it is not clear “what constitutes someone who is ‘affiliated’ with
a gang.” We have suggested, however, that a district court may forbid a defendant
from having contact “with persons affiliated with [a] gang,” that is, persons who “are
not ‘members’ of [a] gang in a formal sense” but who are still “involved in a gang’s
criminal activities.” Johnson, 626 F.3d at 1091. Far from constituting plain error,
then, this language finds approval in our precedent.
AFFIRMED.
3