United States v. Evans, No. 16-10310 (9th Cir. 2018)
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Defendant appealed the sentence imposed because of his conviction for being a felon in possession of a firearm and ammunition and the sentence for violating the conditions of his supervised release in another case. The panel held that the district court did not err in applying an enhancement under USSG 2A2.2(a) and (b)(2)(A) for use of a firearm in the commission of an aggravated assault; the panel remanded for the district court to strike the final sentence in Special Condition 5, which explicitly removed the requirement that the government prove mens
rea in a future revocation proceeding; three standard conditions of supervised release were unconstitutionally vague and the panel remanded with instructions; and the panel need not decide whether it should read into Fed. R. Crim. P. 32.1 a requirement that a district court in a revocation proceeding resolve factual disputes or determine explicitly that such resolution was unnecessary. Therefore, the panel affirmed in part, vacated in part, and remanded in part.
Court Description: Criminal Law The panel affirmed a sentence for violating conditions of supervised release, vacated a sentence for being a felon in possession of a firearm, and remanded for the district court to correct conditions of supervised release. The panel held that the district court did not err in applying an enhancement under USSG § 2A2.2(a) and (b)(2)(A) for use of a firearm in the commission of an aggravated assault. The panel rejected most of the defendant’s challenges to supervised release Special Condition 5, which imposed several gang-related constraints, but the panel remanded for the district court to strike the final sentence, which explicitly removes the requirement that the government prove mens rea in a future revocation proceeding. The panel agreed with the defendant that three of his standard conditions of supervised release – which the Sentencing Commission has since amended to address their vagueness – are unconstitutionally vague. The panel remanded for the district court to remove the phrase “meet other family responsibilities” from Standard Condition 4. The panel remanded for the district court to remove an ambiguity in Standard Condition 5, which requires the defendant to work “regularly” at a lawful occupation. The panel remanded for the district court to modify Standard
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