United States v. Reyes, No. 20-50016 (9th Cir. 2021)
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Defendant appealed her sentence imposed after she pleaded guilty to unlawful importation of methamphetamine and heroin, principally contending that the district court erred by failing to give her advance notice before imposing a special condition of supervised release that requires her to submit to suspicionless searches by any law enforcement officer.
The Ninth Circuit concluded that United States v. Wise, 391 F.3d 1027 (9th Cir. 2004), which held that, where a condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed, remains good law after Irizarry v. United States, 553 U.S. 708 (2008), which held that, before imposing a custodial sentence, a district court is not required to give advance notice that it is considering varying upwards from the applicable sentencing range under the Sentencing Guidelines. Therefore, Wise is controlling here and the district court erred by failing to give notice that it was contemplating imposing its broad search condition prior to imposing that condition in its oral pronouncement of sentence. The panel vacated at least that portion of defendant's sentence. The court affirmed the custodial portion of defendant's sentence, finding no plain error.
Court Description: Criminal. The panel affirmed in part and vacated in part a sentence, and remanded, in a case in which the defendant pleaded guilty to unlawful importation of methamphetamine and heroin. The defendant’s principal contention was that the district court erred by failing to give her advance notice before imposing a special condition of supervised release that requires her to submit to suspicionless searches by any law enforcement officer. The defendant asserted that this contravened United States v. Wise, 391 F.3d 1027 (9th Cir. 2004), which held that, “[w]here a condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed.” The Government contended that Wise was effectively overruled by the Supreme Court in Irizarry v. United States, 553 U.S. 708 (2008), which held that, before imposing a custodial sentence, a district court is not required to give advance notice that it is considering varying upwards from the applicable sentencing range under the Sentencing Guidelines. Rejecting the Government’s contention that Reyes did not adequately preserve her objection and that the panel should therefore review the lack- of-notice issue only for plain error, the panel considered the issue de novo. Reviewing the relevant caselaw leading up to Wise, as well as the later decision in Irizarry, the panel concluded that Wise is easily reconciled with Irizarry, and UNITED STATES V. REYES 3 remains binding. The panel held that the district court therefore erred by failing to give notice that it was contemplating imposing its broad search condition prior to imposing that condition in its oral pronouncement of sentence. Reviewing for plain error the defendant’s contention that the district court failed to explain at sentencing why it rejected her request for a downward departure or a variance, the panel found no basis to conclude that an obvious and prejudicial error occurred, much less one that seriously affected the fairness, integrity, or public reputation of judicial proceedings. The panel therefore affirmed the custodial portion of her sentence. Because vacating at least the suspicionless-search condition based on the Wise error alters the overall package of conditions that the district court thought were warranted to ensure that the defendant was adequately supervised after her release from incarceration, the panel exercised its discretion to vacate the entirety of the supervised release portion of her sentence and to remand to the district court for the limited purpose of imposing a new supervised release sentence. Judge Higginson concurred in the judgment, agreeing that the sentence must be vacated because numerous supervised release conditions which appeared in the defendant’s written judgment were not pronounced orally at sentencing. He would realign this aspect of sentencing with the court’s duty under 18 U.S.C. § 3583—to confirm relatedness to a defendant’s circumstance and least restrictiveness—by requiring oral articulation at sentencing of any supervised release condition that is discretionary regardless of whether a Sentencing Commission policy statement classifies the condition as “standard” or “special.” 4 UNITED STATES V. REYES
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