United States v. Martinez ( 2021 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT June 23, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 19-1389
(D.C. No. 1:18-CR-00522-WJM-1)
DAMON RAMON MARTINEZ, (D. Colo.)
Defendant - Appellant.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before PHILLIPS, EBEL, and CARSON, Circuit Judges.
_________________________________
We return to the familiar subject of supervised-release conditions, this time
examining the District of Colorado’s post-Cabral version of Standard Condition 12.
Under this condition, a probation officer may, after getting the district court’s approval,
(1) notify third parties of risks presented by a defendant or (2) direct the defendant to
notify the third parties. Damon Martinez argues that post-sentencing risk notification
under Standard Condition 12 would be a modification of his supervised-release
conditions and thus require the district court to hold a hearing under Federal Rule of
Criminal Procedure 32.1(c) before approving any risk notification. Under the prudential-
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
ripeness doctrine, we decline to reach this argument because it requires factual
development. As a secondary issue, Martinez contends that the district court erred in
treating two of his earlier felony convictions as crimes of violence, which increased his
advisory imprisonment range. He concedes that existing circuit precedent forecloses his
argument and raises it now to preserve it for further appellate review. Accordingly, we
dismiss Martinez’s appeal on the first argument and affirm the district court on the
second argument.
I. Background
Damon Martinez violated his state parole arising from his Colorado felony
robbery conviction. State correctional officials tracked him to a location and minutes later
stopped his car. After finding drugs on him, the officials searched his car and found more
drugs and a loaded firearm. A federal grand jury indicted him on a charge of felon in
possession of a firearm, and Martinez pleaded guilty. The probation office prepared and
revised a presentence report (“PSR”). In the district court, Martinez objected to the PSR’s
recommendation that the court impose the District of Colorado’s Standard Condition of
Supervised Release 12. The district court denied the objection, and Martinez now
appeals.
II. Discussion
Under the District of Colorado’s Standard Condition 12, a probation officer may
after getting the district court’s approval (1) notify third parties of risks presented by a
defendant or (2) direct the defendant to notify the third parties of the risks. But as
Martinez points out, this version of Standard Condition 12 doesn’t answer whether the
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later risk notification is a “modification” of supervised-release conditions. If it is,
Martinez would have a right to a counseled hearing under Fed. R. Crim. P. 32.1(c) 1
before the district court approved any risk notification. Martinez asks not that we strike
down Standard Condition 12 but that we interpret it as being subject to Rule 32.1(c). We
conclude that Martinez has failed to satisfy the prudential-ripeness doctrine for this claim
and decline to reach its merits.
A. Prudential-Ripeness Doctrine
“We review the issue of ripeness de novo.” Roe No. 2. v. Ogden, 253 F.3d 1225,
1231 (10th Cir. 2001). “Even when an appeal satisfies Article III’s ‘case or controversy’
requirement, we may still decline to review it under the prudential ripeness doctrine,”
which “turns on two factors: (1) ‘the fitness of the issue for judicial review,’ and (2) ‘the
hardship to the parties from withholding review.’” United States v. Cabral, 926 F.3d 687,
693 (10th Cir. 2019) (quoting United States v. Bennett, 823 F.3d 1316, 1326 (10th Cir.
2016)). In addressing prudential ripeness, the parties rely primarily on United States v.
1
This Rule reads as follows:
(c) Modification.
(1) In General. Before modifying the conditions of probation or
supervised release, the court must hold a hearing, at which the person
has the right to counsel and an opportunity to make a statement and
present any information in mitigation.
(2) Exceptions. A hearing is not required if:
(A) the person waives the hearing; or
(B) the relief sought is favorable to the person and does not
extend the term of probation or supervised release; and
(C) an attorney for the government has received notice of
the relief sought, has had a reasonable opportunity to object, and
has not done so.
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Cabral. So we review that case before turning to Martinez’s claim.
1. United States v. Cabral
In Cabral, this court examined the District of Colorado’s pre-2019 version of
Standard Condition 12.2 That version read as follows:
If the probation officer determines that you pose a risk to another person
(including an organization), the probation officer may require you to
notify that person about the risk and you must comply with that
instruction. The probation officer may contact the person and confirm that
you have notified the person about the risk.
926 F.3d at 691.3 Cabral contested this condition on two grounds: (1) that the risk-
notification provision was unconstitutionally vague, and (2) that the “condition improperly
delegate[d] judicial power to a probation officer to decide the scope of the ‘risk’ that should
trigger the notification requirement, thereby delegating the power to ‘decide the nature or
extent of [Mr. Cabral’s] punishment.’” Id. at 692–93 (quoting Cabral’s opening brief). This
court concluded that the vagueness challenge was unripe for review but that the improper-
delegation challenge was ripe for review. Id. at 693–94.
2
On July 16, 2019, the District of Colorado amended its version of Standard
Condition 12 in response to Cabral.
3
This condition is the substantial equivalent of U.S.S.G. § 5B1.3(c)(12)
(2018), which reads as follows:
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. The probation officer may contact the
person and confirm that the defendant has notified the person about the
risk.
4
We declined to review Cabral’s vagueness challenge to the District of Colorado’s
pre-2019 version of Standard Condition 12 after concluding that the challenge wasn’t fit
for review and that Cabral would face little hardship from our withholding review.
In deciding whether an issue is fit for judicial review, “we focus on whether the
determination of the merits turns upon strictly legal issues or requires facts that may not
yet be sufficiently developed.” Id. at 693 (quoting United States v. Ford, 882 F.3d 1279,
1283 (10th Cir. 2018)). In Cabral, we held that the vagueness challenge was not fit for
judicial review, because “it would be virtually impossible to resolve [it] without factual
development.” Id. at 694. In this regard, we noted that “we do not know how (or even
whether) the probation officer would choose to enforce the risk-notification condition.”
Id. And “[e]ven if we could resolve this pre-enforcement challenge, as a pure question of
law, our precedent strongly disfavors challenges to supervised-release conditions that
might never be applied.” Id. Thus, Cabral’s vagueness challenge wasn’t fit for review
“[b]ecause the scenarios Mr. Cabral alludes to may not occur as anticipated, or indeed
may not occur at all, depending on the probation officer’s future decisions[.]” Id. (internal
quotation marks and citations omitted).
In support, we relied on two cases in which the uncertainty of future events led us
to rule that arguments were unfit for review. Id. at 695. In the first, United States v. Ford,
882 F.3d 1279 (10th Cir. 2018), we held that a supervised-release challenge regarding
polygraph examination was unripe because it was “contingent on the decision of a
different actor.” Id. (quoting Ford, 882 F.3d at 1286). And in the second, United States v.
Bennett, 823 F.3d 1316 (10th Cir. 2016), we held that a supervised-release challenge to a
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plethysmograph-testing condition was unripe “where a ‘treatment provider must evaluate
[the defendant] and find that testing is appropriate’ before the testing could be imposed.”
Id. (quoting Bennett, 823 F.3d at 1327).
In assessing whether Cabral would suffer hardship from our withholding review,
we considered whether he would “‘face a direct and immediate dilemma’ arising from the
supervised-release condition he is challenging.” Cabral, 926 F.3d at 693 (quoting
Bennett, 823 F.3d at 1328). We concluded that “Mr. Cabral will face little hardship if we
decline to review [his vagueness challenge] now.” Id. at 694. Indeed, we noted that
Cabral’s dilemma—whether to comply with a risk-notification directive—would arise
“only if his probation officer directs him to notify someone.” Id. at 695. Though we
acknowledged that, by later ordering Cabral to notify third parties of risk, a probation
officer could exercise “broad power to infringe on Mr. Cabral’s rights,” we agreed with
the government that those scenarios had not occurred and may never occur. Id. Echoing
Ford, we declared that “[w]hen a condition of supervised release is, by its own terms,
contingent on the decision of a different actor” “that condition is not ripe for immediate
review.” Id. (quoting Ford, 882 F.3d at 1286). We stated that “[t]his holds true even if the
potential hardship is significant, and even if the challenge could theoretically be analyzed
without waiting for its application.” Id. (citing Ford, 882 F.3d at 1286–87).
In his second challenge, Cabral argued that the District of Colorado’s pre-2019
version of Standard Condition 12 improperly delegated to the probation officer the power
to define terms such as “risk” and thus to “determine what conduct the condition
proscribes and when it will be enforced.” Id. at 697. We held that this challenge was ripe
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for review. Id. In support, we noted that this issue “presents ‘a legal [question] that can be
easily resolved’ without additional factual development.” Id. at 696 (quoting Ford, 882
F.3d at 1284). Unlike with the potential polygraph testing in Ford, we observed that “Mr.
Cabral is challenging the already-realized delegation of judicial power to a probation
officer, not merely some hypothetical future violation that delegation might allow.” Id. In
other words, the improper delegation was complete when the court imposed Standard
Condition 12: “The district court’s delegation to the probation officer occurred at the
moment the district court tasked the probation officer with assessing Mr. Cabral’s risk
and did so without meaningful direction.” Id. The propriety of the delegation did not
“depend on how (or even whether) the probation officer might later choose to wield the
delegated power.” Id. Thus, we ruled that “the question whether the risk notification
condition improperly delegated judicial power is presently fit for judicial review.” Id.
In view of this, we concluded that “[t]he burden Mr. Cabral would face if we do
not consider his challenge now weighs at least slightly in favor of review.” Id. Though
recognizing that Cabral would suffer no hardship unless the probation officer invoked the
risk-notification condition, we noted that Cabral could challenge the condition after that
“only without the benefit of appointed counsel or ‘risk re-incarceration’ by violating the
condition.” Id. at 696–97 (quoting Ford, 882 F.3d at 1284). We distinguished Ford on
grounds that Cabral had presented a “pure improper-delegation challenge.” In this
circumstance, which did not require factual development, we found sufficient hardship
from the possibility that Cabral would later have to hire counsel or proceed pro se to
challenge the condition. Id. at 697.
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2. Martinez’s Case
Martinez fails to satisfy either of the two prongs on which our prudential-ripeness
inquiry turns.
Martinez argues that his Rule 32.1(c) argument is fit for review like Cabral’s
improper-delegation argument was. We disagree. In Cabral, as noted, we found it
important that the delegation was complete at the instant the district court imposed the
District of Colorado’s pre-2019 Standard Condition 12. See 926 F.3d at 696. In contrast,
Martinez’s Rule 32.1(c) argument, like Cabral’s vagueness argument, requires factual
development on several points: (1) whether the probation officer will determine that
Martinez presents a risk to a third party; (2) whether the probation officer will determine
that the risk merits notifying the third party of it; (3) whether the probation officer will
request that the district court approve the probation officer’s ordering Martinez to notify
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the third party of the risk4; (4) whether the district court will agree with the probation
officer and approve the probation officer’s ordering Martinez to notify the third party of
the risks; and (5) whether the district court will give this approval without holding a Rule
32.1(c) hearing.5 In short, Martinez’s Rule 32.1(c) issue is not fit for review for the same
reasons that Cabral’s vagueness condition was not yet fit for review. See 926 F.3d at
694–95.
Second, Martinez argues that he will suffer hardship if we decline to decide the
merits of his argument now. But Martinez’s hardship argument fails for the same reason
that Cabral’s did on his vagueness argument. In Cabral, we concluded that the vagueness
challenge didn’t present sufficient hardship, even though Cabral would later “suffer a
4
We agree with the government that any risk notification to third parties by
the probation officer wouldn’t constitute a condition of Martinez’s supervised
release. Simply put, it wouldn’t compel Martinez to do anything or expose him to
revocation of supervised release. In fact, the District of Colorado’s pre-Cabral
version of Standard Condition 12 didn’t require the probation officer to get the
district court’s approval before personally notifying third parties of a defendant’s
risks. But its post-Cabral version does:
If the probation officer determines that you pose a risk to another person
(including an organization), the probation officer may, after obtaining
Court approval, notify the person about the risk or require you to notify
that the person about the risk and you must comply with that instruction.
The probation officer may contact the person and confirm that you have
notified the person about the risk.
Vol. 1 at 117 (post-Cabral language italicized). If it chooses to do so, a district court
can require its pre-approval before probation officers themselves notify third parties
of a defendant’s risks. But nothing in § 5B1.3(c)(12) or Cabral requires that.
5
Because we resolve this issue on prudential-ripeness grounds, we need not
address whether risk-notification approval must comport with Rule 32.1(c).
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burden from the lack of appointed counsel to challenge the condition.” 926 F.3d at 696.
So too here.
B. U.S.S.G. § 4B1.2 Crimes of Violence
Martinez contends that Application Note 1 to U.S.S.G. § 4B1.2 runs counter to
the guideline text by defining “crime of violence” as including attempts and
conspiracies to commit those offenses. Martinez seeks to preserve the issue of
whether his felony convictions for attempted robbery and conspiracy to commit
menacing with a deadly weapon qualify as crimes of violence, but he acknowledges
that we cannot now accept such an argument. Absent a contrary Supreme Court
ruling or en banc ruling from our court, we must abide our earlier decision that
Application Note 1 is a permissible interpretation of § 4B1.2(a). See United States v.
Martinez, 602 F.3d 1166 (10th Cir. 2010).
CONCLUSION
We dismiss Martinez’s challenge to Standard Condition 12 as prudentially
unripe and affirm the district court’s crime-of-violence findings and sentence.
Entered for the Court
Gregory A. Phillips
Circuit Judge
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