United States v. Wells, No. 19-10451 (9th Cir. 2022)
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Wells pled guilty to the receipt of child pornography. He was sentenced to 76 months’ imprisonment followed by five years of supervised release, with 16 special conditions.
The Ninth Circuit dismissed, in part, his appeal. Wells signed an unambiguous agreement that knowingly and voluntarily waived the right to appeal. The waiver contained an “illegal sentence” exception and does not apply to a challenge that the sentence violates the Constitution if the constitutional claim directly challenges the sentence itself and is not based on any underlying constitutional right that was expressly waived. The court, therefore, addressed only three constitutional challenges to the supervised release conditions. The court vacated Special Condition 3, a computer ban; its definition of “computer” potentially could be understood to encompass household objects and is unconstitutionally vague. The court remanded with instructions for the district court to delineate explicitly that the prohibition only covers computers and computer-related devices that can access sexually explicit conduct. Because the use of the internet was integral to the offense of conviction, the court rejected a First Amendment challenges to Special Condition 5, an internet ban. Wells argued that Conditions 3 and 5 unconstitutionally delegated authority to the probation officer; the court declined to address that issue because the conditions are not manifestly unjust.
Court Description: Criminal Law The panel dismissed in part an appeal from the district court’s judgment and order imposing sentence and conditions of supervised release, vacated the judgment in part, and remanded with instructions to the district court to clarify a special condition of supervised release to avoid a constitutional violation. The panel wrote that because the language of the waiver of the right to appeal in the plea agreement is unambiguous, and the defendant knowingly and voluntarily waived the right to appeal, the panel was obligated to enforce the waiver and would not exercise the jurisdiction to review the merits of the appeal unless any exceptions to the appeal waiver apply. Explaining that a waiver of the right to appeal does not bar a defendant from challenging an “illegal sentence,” which has a very limited and precise meaning in this context, the panel observed that the defendant does not have any statutory basis for challenging the terms of his sentence as illegal. The panel declined to extend the meaning of an “illegal sentence” to encompass sentences that potentially violate 18 U.S.C. § 3583(d), which governs imposition of conditions of supervised release, and 18 U.S.C. § 3553, which sets forth factors to be considered in imposing a sentence. UNITED STATES V. WELLS 3 In light of potential ambiguity in this court’s caselaw regarding when an appeal-waiver exception based on constitutional challenges applies or on the scope of the exception, the panel attempted to clarify. Guided by United States v. Bibler, 495 F.3d 621 (9th Cir. 2007), and its progeny, the panel concluded that a waiver of the right to appeal a sentence does not apply if (1) the defendant raises a challenge that the sentence violates the Constitution; (2) the constitutional claim directly challenges the sentence itself; and (3) the constitutional challenge is not based on any underlying constitutional right that was expressly and specifically waived by the appeal waiver as part of a valid plea agreement. Following that precedent, the panel wrote that it must address the defendant’s constitutional claims that directly challenge the terms of his supervised release, where the defendant waived his general right to appeal “any aspect” of his sentence but did not expressly waive any specific constitutional right. Except for the defendant’s constitutional challenges to the terms of his supervised release, the panel enforced the waiver and dismissed the appeal. The panel addressed on the merits the defendant’s three constitutional challenges: (1) Special Condition No. 3 (computer ban) is unconstitutionally vague; (2) Special Condition No. 5 (internet ban) violates his First Amendment rights; and (3) both conditions are an unconstitutional delegation of authority because the conditions contain language that specify that the restrictions are subject to the approval of the probation officer. The panel held that Special Condition No. 3, whose definition of “computer” potentially could be understood to encompass household objects, is unconstitutionally vague. The panel wrote that because Special Condition No. 3 4 UNITED STATES V. WELLS violates a constitutional right, it is an “illegal” sentence and the waiver in the defendant’s plea agreement does not bar the appeal. The panel declined to apply the appeal waiver, and exercised its jurisdiction to consider the issue. Because the condition is a fortiori unconstitutionally vague on the merits, the panel vacated and remanded with instructions for the district court to delineate explicitly that the prohibition only covers computers and computer-related devices that can access sexually explicit conduct. Because the use of the internet was essential and integral to the offense of conviction, the receipt of child pornography, the panel rejected the defendant’s First Amendment challenges to Special Condition No. 5. Because Special Condition No. 5 does not violate the Constitution, it is not an “illegal” sentence, and in light of waiver of the right to appeal, the panel dismissed the defendant’s challenges to that condition. As to the defendant’s contention that Special Condition Nos. 3 and 5 unconstitutionally delegate authority to the probation officer, which the defendant did not argue in the district court, the panel wrote that it did not need to reach this issue because the special conditions are not manifestly unjust. It concluded that even considering the merits, the special conditions are not an unconstitutional delegation of authority. Dissenting, Judge Bea wrote that this case should be decided by the court sitting en banc because Bibler, 495 F.3d 621 (holding that an exception to valid appeal waivers exists if the appellant claims a violation of a constitutional right), and United States v. Joyce, 357 F.3d 921 (9th Cir. 2004) (dismissing an appeal based on a valid appeal wavier even though the defendant claimed his sentence violated his First UNITED STATES V. WELLS 5 Amendment rights), both control this case yet are entirely irreconcilable with one another.
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