United States v. Mitchell ( 2022 )


Menu:
  •           United States Court of Appeals
    For the First Circuit
    No. 21-1388
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    AKEEM CRUZ, a/k/a Vybe, a/k/a Mello,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. Jon D. Levy, U.S. District Judge]
    Nos. 21-1428, 21-1429
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    TAYLOR LOVELY,
    Defendant, Appellant.
    APPEALS FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. Lance E. Walker, U.S. District Judge]
    No. 21-1720
    UNITED STATES OF AMERICA,
    Appellee,
    v.
    JEREMIAH MITCHELL, a/k/a Jazz,
    Defendant, Appellant.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MAINE
    [Hon. John A. Woodcock, Jr., U.S. District Judge]
    Before
    Lynch, Selya, and Howard,
    Circuit Judges.
    Jamesa J. Drake and Drake Law LLC on brief for appellants
    Cruz and Lovely.
    Rory A. McNamara and Drake Law LLC son brief for appellant
    Mitchell.
    Darcie N. McElwee, United States Attorney, and Benjamin M.
    Block, Assistant United States Attorney, on brief for appellee.
    September 28, 2022
    LYNCH, Circuit Judge.         In these consolidated appeals,
    appellants challenge      Standard Condition of        Supervised    Release
    Number 12, arguing that the condition on its face violates the Due
    Process Clause of the Fifth Amendment on vagueness grounds and
    Article III of the U.S. Constitution on nondelegation grounds.1
    Akeem   Cruz,    Taylor     Lovely,    and   Jeremiah     Mitchell
    ("appellants") respectively pleaded guilty, pursuant to written
    plea agreements with the government, to (1) one count of conspiracy
    to possess with intent to distribute cocaine base and more than
    100 grams of heroin in violation of 
    21 U.S.C. §§ 841
    (b)(1)(B),
    846; (2) two counts of conspiracy to distribute and possess with
    intent to distribute 50 grams or more of               methamphetamine in
    violation of 
    21 U.S.C. § 841
    (a)(1), (b)(1)(A); and (3) one count
    of conspiracy to distribute and possess with intent to distribute
    a mixture or substance containing fentanyl in violation of 
    21 U.S.C. §§ 841
    (a)(1), (b)(1)(C), 846.        Appellants' cases below were
    before three different district court judges.              These separate
    prosecutions were consolidated on appeal because they raise the
    same appellate challenges.
    The   district    court    sentenced    Cruz   to   100    months'
    imprisonment followed by four years' supervised release; Lovely to
    1    Appellants Cruz and Lovely mistakenly argue that
    Standard Condition 12 violates not the Fifth Amendment, but the
    Fourteenth Amendment.
    - 3 -
    158   months'    imprisonment      followed    by     five    years'    supervised
    release; and Mitchell to 60 months' imprisonment followed by three
    months' supervised release.            The district courts also imposed
    conditions of supervised release on all appellants, including
    Standard Condition 12.         No appellant objected to the imposition of
    Standard Condition 12 in the district court.                  For the first time
    on    appeal,    appellants      challenge     Standard        Condition    12    as
    unconstitutionally vague and an unconstitutional delegation of
    judicial authority.
    We    reject   on    the   merits    all    of    the   constitutional
    challenges made and affirm.
    I.
    The    following      facts,     taken    from    the   unobjected     to
    portions of the presentence reports ("PSR"), sentencing hearing
    transcripts, and appellants' briefs, are not in dispute.
    a. Akeem Cruz
    Between     2015-2017,      Akeem        Cruz     participated    in    a
    conspiracy to distribute heroin and cocaine base in the Portland,
    Maine area.      Cruz, who always maintained an independent source of
    supply, was part of the conspiracy "from inception."                   Cruz and his
    co-conspirators worked independently but "shared trap houses for
    distribution," "utilized the same primary person as the connection
    to customers," and steered customers to one another when their
    individual supply ran low.             When Cruz was incarcerated from
    - 4 -
    November 2015 to March 2016, his then girlfriend operated his drug
    business for him.        After Cruz was released from prison, he resumed
    operation of his illegal drug business.              Law enforcement conducted
    controlled purchases from Cruz in 2017 and charged him with federal
    crimes.
    Cruz entered into a written plea agreement with the
    government in August 2019.            Cruz waived his right to appeal the
    "guilty plea and any other aspect of [his] conviction" and "[a]
    sentence of imprisonment that does not exceed 120 months."                      The
    district    court      found   that   Cruz   was     responsible    for   a   total
    converted drug weight of over 490 kilograms.                At sentencing, the
    district court determined, without objection, Cruz's total offense
    level to be 27 and his criminal history category to be IV,
    resulting in a Guidelines sentencing range of 100 to 125 months'
    imprisonment.       The district court imposed, without objection, a
    sentence of 100 months' imprisonment followed by four years'
    supervised release, during which Cruz would be required to comply
    with certain enumerated conditions, including Standard Condition
    12.
    Cruz,      through   counsel,      did   not   object   to    Standard
    Condition 12 in the PSR, in his pre-sentencing submissions to the
    district court, or at his sentencing hearing.               For the first time
    on    appeal,   Cruz    challenges    the    constitutionality      of    Standard
    Condition 12.
    - 5 -
    b. Taylor Lovely
    Taylor    Lovely    participated          in     two    conspiracies   to
    distribute methamphetamine in Maine.
    The   first     conspiracy,    in       which    Lovely    conspired   to
    obtain methamphetamine from suppliers in the western United States
    to sell throughout northern Maine, occurred between approximately
    January 1, 2017, and about August 30, 2018.                        Lovely was a mid-
    level   participant    in    the   conspiracy,        who     "sent    and   received
    packages [of methamphetamine], secured additional addresses to
    receive shipments, and distributed methamphetamines to lower-level
    distributors."    Approximately two kilograms of methamphetamine are
    associated solely with Lovely's first conspiracy.
    The   second    conspiracy,        in    which    Lovely    traveled    to
    Arizona and California to obtain methamphetamine and transport it
    back to Maine, occurred between approximately July 2018 and May
    19, 2019.     Lovely assisted in breaking down larger amounts of
    methamphetamine      into    smaller    quantities          for    distribution    and
    obtained assets in his name as part of the second conspiracy.                      In
    November 2018, Lovely purchased two vehicles with almost $30,000
    cash as part of this conspiracy.           One of these vehicles was used
    by co-conspirators to travel to Mexico with a large amount of cash
    in January 2019.          Law enforcement officers searched the other
    vehicle during a traffic stop in April 2019, and seized nearly
    $15,000 in cash and a .22 caliber rifle.                    Though Lovely was not
    - 6 -
    present at the traffic stop, he "expressed concern" to a co-
    conspirator about the car's impoundment "because there was a
    firearm contained in the vehicle."            At sentencing, the district
    court found that it was reasonably foreseeable by Lovely that his
    co-conspirator was likely to use a firearm.
    Lovely entered into a written plea agreement with the
    government in December 2020.         Lovely waived his right to appeal
    his "guilty plea and any other aspect of [his] conviction" and a
    "sentence of imprisonment . . . that does not exceed 188 months."
    At   sentencing,    the   district    court   determined   Lovely's   total
    offense level to be 38 and his criminal history category to be II,
    resulting in a Guidelines sentencing range of 262 to 327 months'
    imprisonment. The district court imposed a sentence of 158 months'
    imprisonment followed by five years' supervised release for each
    offense,   to be served concurrently.             The court   also imposed
    conditions of supervised release, including Standard Condition 12.
    Lovely, through counsel, did not object to Standard
    Condition 12 in the PSR, in his pre-sentencing submissions to the
    district   court,    or   at   his   sentencing    hearing.    Lovely   now
    challenges the constitutionality of Standard Condition 12 for the
    first time on appeal.
    c. Jeremiah Mitchell
    For approximately two years, Jeremiah Mitchell obtained
    heroin and fentanyl from a Massachusetts supplier for distribution
    - 7 -
    in Maine.      Mitchell provided Patricia Oliver with heroin and
    cocaine that Oliver then sold to the public.            On October 4, 2018,
    law enforcement stopped Oliver and found in her possession fentanyl
    and nearly $5,000 in cash.       That same day, Mitchell texted a third
    involved     individual,      instructing   her    to    dispose   of   drug
    trafficking paraphernalia -- including "a coffee grinder with
    fentanyl residue; bottles of inositol, a known cutting agent; a
    digital scale with fentanyl residue; and other items such as
    plastic    baggies   common    in   drug-dealing   operations"     --   in   a
    Scarborough, Maine, hotel room.        Mitchell was arrested later that
    day when he attempted to meet Oliver to collect the proceeds of
    her sales.
    Mitchell entered into a written plea agreement with the
    government in March 2021.       Mitchell waived his right to appeal his
    "guilty plea and any other aspect of [his] conviction" and "[a]
    sentence of imprisonment that does not exceed 33 months."                The
    district court attributed over 1,300 grams of fentanyl to Mitchell.
    At sentencing, the district court determined, without objection,
    Mitchell's total offense level to be 33 and his criminal history
    category to be II, resulting in a Guidelines sentencing range of
    151 to 188 months' imprisonment.        The district court then applied
    a three-level decrease with the government's consent, reducing the
    Guidelines sentencing range to 108 to 135 months' imprisonment.
    The district court imposed a sentence of 60 months' imprisonment
    - 8 -
    followed by three years' supervised release.                       The court also
    imposed   conditions     of    supervised         release,     including     Standard
    Condition 12.       Mitchell preserved his right to appeal.
    Mitchell, through counsel, did not object to Standard
    Condition 12 in the PSR, in his pre-sentencing submissions to the
    district court, or at his sentencing hearing.                          Mitchell now
    challenges the constitutionality of Standard Condition 12 for the
    first time on appeal.
    II.
    If an objection to a condition of supervised release is
    preserved, then our review is for abuse of discretion.                      See United
    States v. Brown, 
    235 F.3d 2
    , 3 (1st Cir. 2000); see also United
    States v. D'Amario, 
    59 F. App'x 348
    , 349 (1st Cir. 2003) (per
    curiam) ("[W]e ordinarily review a [preserved] challenge to the
    imposition     of   conditions      of    supervised     release      for    abuse    of
    discretion.").
    Unpreserved     claims       challenging       the      imposition      of
    standard conditions of supervised release are reviewed on appeal
    under the "demanding . . . plain error standard of review, which
    requires [appellants] to show that (1) an error occurred (2) which
    was   clear    or   obvious    and       which    not   only    (3)    affected      the
    appellant's substantial rights but also (4) seriously impaired the
    fairness,      integrity,      or        public     reputation         of    judicial
    proceedings."       United States v. Cueto-Núñez, 
    869 F.3d 31
    , 39 (1st
    - 9 -
    Cir. 2017) (internal quotation marks omitted).        "The appellant
    must carry the devoir of persuasion as to each of those four
    elements."    United States v. Padilla, 
    415 F.3d 211
    , 218 (1st Cir.
    2005).   Appellants did not preserve their objections to Standard
    Condition 12 that they attempt to argue on appeal.       We hold that
    there is no error at all and the constitutional challenges fail on
    the merits.   See, e.g., United States v. Antonakopoulos, 
    399 F.3d 68
    , 84 (1st Cir. 2005) (finding "no error, much less plain error").
    III.
    Appellants     challenge     Standard   Condition   12   as
    unconstitutionally vague and an unconstitutional delegation of
    judicial authority to a probation officer.2       We find no error in
    the district court's imposition of Standard Condition 12.3
    a. Standard Condition 12
    The text of Standard Condition 12 states as follows:
    If the probation officer determines that the
    defendant poses a risk to another person
    2    It is clear that the challenges appellants present are
    facial challenges to Standard Condition 12.
    3    The government does not argue that Cruz's or Lovely's
    challenges to Standard Condition 12 are barred by the appeal
    waivers contained in their plea agreements, and we deem any such
    argument waived.   See United States v. Zannino, 
    895 F.2d 1
    , 16
    (1st Cir. 1990). We express no opinion as to whether either appeal
    waiver, if not waived, would extend to the challenged standard
    condition. Because appellants' claims are easily resolved under
    the plain error standard, we decline to decide whether appellants'
    failure to object to Standard Condition 12 below constitutes waiver
    or forfeiture. See United States v. Acevedo-Sueros, 
    826 F.3d 21
    ,
    24 (1st Cir. 2016); see also Cueto-Núñez, 869 F.3d at 39.
    - 10 -
    (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.
    U.S. Sent'g Guidelines Manual § 5D1.3(c)(12) (U.S. Sent'g Comm'n
    2016).
    The U.S. Sentencing Commission promulgated this language
    in 2016 pursuant to its congressionally delegated authority to
    "promulgate . . . general policy statements regarding . . . the
    conditions   of   probation   and    supervised     release."      
    28 U.S.C. § 994
    (a)(2)(B).    The text of Standard Condition 12 that appellants
    challenge    is   taken   nearly      verbatim      from    the    Sentencing
    Commission's recommended language, changing only each instance of
    "the defendant" to "you."4
    A prior version of Standard Condition 12,5 which the
    Sentencing   Commission   promulgated        in   1987   shortly   after   its
    4      The condition that appellants challenge reads:
    If the probation officer determines that you
    pose a risk to another person (including an
    organization), the probation officer may
    require you to notify 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.
    5      The prior 1987 version, not at issue here, provided:
    [A]s directed by the probation officer, the
    defendant shall notify third parties of risks
    - 11 -
    creation, was repeatedly criticized for alleged constitutional
    deficiencies.   The Seventh Circuit criticized the 1987 provision
    as "riddled with ambiguities."    United States v. 
    Thompson, 777
    F.3d 368, 379 (7th Cir. 2015); see also United States v. Evans,
    
    883 F.3d 1154
    , 1162-64 (9th Cir.) (criticizing the 1987 condition
    as impermissibly vague because it left appellants "guessing" as to
    whom they would need to notify and what they would need to tell
    them), cert. denied, 
    139 S. Ct. 133
     (2018); United States v. Hill,
    
    818 F.3d 342
    , 345 (7th Cir. 2016) (describing the 1987 condition
    as "[h]opelessly vague").    In response to this criticism, the
    Sentencing Commission amended Standard Condition 12 in 2016 to the
    present version that appellants now challenge.    See U.S. Sent'g
    Guidelines Manual App. C Supp., Amend. 803 (Nov. 1, 2016).    The
    current Standard Condition 12 removes the phrase "personal history
    or characteristics" and clarifies that the defendant must "comply
    with [an] instruction" by the probation officer "to notify" an
    identified person or organization of an identified risk, thereby
    removing any guesswork as to when the defendant must act.
    that may be occasioned by the defendant's
    criminal record or personal history or
    characteristics,    and   shall   permit   the
    probation officer to make such notifications
    and to confirm the defendant's compliance with
    such notification requirement.
    U.S. Sent'g Guidelines Manual § 5B1.4(a)(13) (U.S. Sent'g Comm'n
    1987).
    - 12 -
    Numerous      circuit      courts     have        since     upheld     the
    constitutionality of Standard Condition 12 in its current form.
    The Fifth Circuit upheld Standard Condition 12 against a delegation
    challenge because the condition "only allows the probation officer
    to direct when, where, and to whom the defendant must give notice"
    -- "not unilaterally decide whether the defendant is subject to
    the condition."     United States v. Mejia-Banegas, 
    32 F.4th 450
    , 452
    (5th Cir. 2022).        The Eighth Circuit upheld Standard Condition 12
    against a vagueness challenge because the condition states that
    the defendant must notify a person of a particular risk only once
    the probation officer has determined that the defendant poses a
    risk to such person, and against a delegation challenge because
    there was "nothing in the record to show the district court
    disclaimed ultimate authority over [the defendant's] supervision."
    United States v. Janis, 
    995 F.3d 647
    , 653 (8th Cir.), cert. denied,
    
    142 S. Ct. 483
     (2021); see also United States v. Robertson, 
    948 F.3d 912
    , 919-20 (8th Cir.), cert. denied, 
    141 S. Ct. 298
     (2020).
    The Ninth Circuit upheld Standard Condition 12 against a vagueness
    challenge    because     the   risks      referenced     in   the     condition   are
    "limited to the specific risks posed by the defendant's criminal
    record,"    and   the    probation     officer    has    "limited      discretion."
    United   States   v.     Gibson,    
    998 F.3d 415
    ,    423   (9th     Cir.    2021)
    (internal quotation marks omitted).                The Tenth Circuit upheld
    Standard Condition 12 against a vagueness challenge because the
    - 13 -
    condition "clearly and specifically states that [the defendant]
    must provide notice when required to do so by his probation
    officer," and against a delegation challenge because "the district
    court cabined the probation department's discretion."             United
    States v. Hull, 
    893 F.3d 1221
    , 1224-25 (10th Cir. 2018).               The
    Eleventh Circuit upheld Standard Condition 12 against a delegation
    challenge because the condition does "not permit the probation
    officer to unilaterally decide whether [the defendant] 'shall' do
    something."    United States v. Porter, 
    842 F. App'x 547
    , 548 (11th
    Cir. 2021) (per curiam) (citation omitted); see also United States
    v. Nash, 
    438 F.3d 1302
     (11th Cir. 2006) (upholding the pre-2016
    version of Standard Condition 12).6
    b. Appellants' Challenge to Standard Condition 12
    Despite the Sentencing Commission's 2016 amendment of
    Standard Condition 12 to address vagueness concerns and the Courts
    of Appeals that have upheld the Condition's constitutionality,
    appellants    nonetheless   argue   that   Standard   Condition   12   is
    unconstitutionally vague and an unconstitutional delegation of
    judicial authority.
    6    In as applied attacks considering the nature of the
    underlying criminal offense, some decisions have vacated and
    remanded for further consideration of Standard Condition 12. See
    United States v. Boles, 
    914 F.3d 95
    , 112 (2d Cir. 2019); United
    States v. Cabral, 
    926 F.3d 687
    , 698 (10th Cir. 2019).
    - 14 -
    Before        discussing     appellants'      constitutional
    challenges, we outline the general law as to a district court's
    authority to impose conditions of supervised release.           There is no
    challenge in this case that the district courts exceeded that
    authority.
    A district court may impose any condition of supervised
    release that "it considers to be appropriate" as long as the
    condition    (1)     is   "reasonably   related"   to   the    nature    and
    circumstances of the offense and the history and characteristics
    of the defendant, and to various objectives including deterring
    criminal conduct, protecting the public from further crimes, and
    providing needed training, medical care, or effective correctional
    treatment,   
    18 U.S.C. § 3583
    (d)(1);   (2)    involves    "no    greater
    deprivation of liberty than is reasonably necessary" to deter
    criminal conduct and protect the public, 
    id.
     § 3583(d)(2); and (3)
    "is consistent with any pertinent policy statements issued by the
    Sentencing Commission," id. § 3583(d)(3).          See United States v.
    Garrasteguy, 
    559 F.3d 34
    , 41-42 (1st Cir. 2009).              Conditions of
    supervised release "must . . . be supported by the record."               
    Id. at 42
    .   "[T]his requirement can be satisfied without a written or
    oral explanation of the reasons supporting the condition if [the
    court of appeals] can infer the [district] court's reasoning by
    comparing what was argued by the parties or contained in the pre-
    sentence report with what the [district] court did."            
    Id.
    - 15 -
    i. Vagueness
    Appellants       argue      that     Standard     Condition      12     is
    unconstitutionally vague because it "gives no guidance on what
    type of risks; how much risk; how to determine those risks; which
    third    parties;    or   any   other    information        that   can   allow     the
    condition to be applied uniformly" and thus "fails to adequately
    apprise defendant[s] of what [they] must do to comply with the
    law."
    Some courts have held that a condition of supervised
    release violates due process where it "either forbids or requires
    the doing of an act in terms so vague that [people] of common
    intelligence must necessarily guess at its meaning and differ as
    to its application."         United States v. Lee, 
    315 F.3d 206
    , 214 (3d
    Cir.    2003)    (citation    omitted).         Even   were   we   to    apply    that
    standard, Standard Condition 12 easily passes muster.
    We    hold,     consonant    with     other     circuits     that     have
    considered this question, see Janis, 995 F.3d at 653; Gibson, 998
    F.3d at 423; Hull, 893 F.3d at 1224-25, that Standard Condition 12
    is not unconstitutionally vague.               A "commonsense" and contextual
    reading    of    Standard    Condition     12    plainly      provides    that     the
    probation officer determines the nature of the risk appellants
    pose and to whom appellants must give warning of said risk by
    virtue of their criminal record.               See United States v. Gallo, 
    20 F.3d 7
    , 12 (1st Cir. 1994) (explaining that conditions of probation
    - 16 -
    must    be   read   "in     a    commonsense         way").     This   directive       is
    unambiguous. Appellants need not guess as to the scope of Standard
    Condition 12; they simply must follow the instructions of their
    probation officer.          See Janis, 995 F.3d at 653; Gibson, 998 F.3d
    at 423; Hull, 893 F.3d at 1224.                 Standard Condition 12's context
    makes clear that the "risk" is defined as that posed by appellants'
    criminal record.       See § 5D1.3(b)(1)(A) (discretionary conditions
    of supervised release, such as Standard Condition 12, may be
    imposed where such conditions are reasonably related to "the nature
    and    circumstances        of       the     offense     and     the   history        and
    characteristics of the defendant"); see also Gibson 998 F.3d at
    422; Hull, 893 F.3d at 1226.                 The probation officer's discretion
    is    thus   limited   as       to   when    Standard    Condition     12   should     be
    triggered -- risks unrelated to a probationer's criminal record
    are plainly outside the scope of the provision -- all while
    promoting judicial efficiency because district court judges cannot
    be expected to write a condition that addresses every possible
    risk scenario.
    ii. Delegation
    Appellants         challenge      Standard       Condition     12   as    an
    unconstitutional delegation of judicial authority to probation
    officers, arguing that it "offers no intelligible standards on
    which risks warrant notification, and to whom," leaving probation
    - 17 -
    officers with "sole authority to determine whether the risk-
    notification provision must be followed and when."
    Article        III       of      the     U.S.     Constitution         vests
    responsibility        for    resolving         cases   and     controversies     in       the
    federal courts.             "[S]eparation of powers forbids courts from
    delegating their Article III responsibilities."                      United States v.
    Meléndez-Santana, 
    353 F.3d 93
    , 101 (1st Cir. 2003).                         Article III
    courts     may      use   "nonjudicial          officers       to   support    judicial
    functions, as long as that judicial officer retains and exercises
    ultimate responsibility."              Bucci v. United States, 
    662 F.3d 18
    , 35
    (1st Cir. 2011) (quoting United States v. Allen, 
    312 F.3d 512
    ,
    515–16 (1st Cir. 2002) (internal quotation marks omitted)).                               For
    example,      courts      may    delegate       "administrative       details"       to     a
    probation officer.           Id. at 36.
    We    hold,    consonant         with    other    circuits      that    have
    considered this question, see Mejia-Banegas, 32 F.4th at 452;
    Janis, 995 F.3d at 653; Hull, 893 F.3d at 1225-26; Porter, 842 F.
    App'x    at        548-49,      that        Standard    Condition      12     does        not
    unconstitutionally delegate judicial authority to a probation
    officer.       When the probation department identifies a risk by
    applying the criteria set forth by the district court, it has no
    discretion as to whether appellants must give notice pursuant to
    Standard Condition 12.             See Hull, 893 F.3d at 1226.          The probation
    officer is tasked simply with directing appellants when, where,
    - 18 -
    and to whom notice must be given.          See Nash, 
    438 F.3d at 1306
    ;
    Janis, 995 F.3d at 653.       "That limited scope of authority neither
    leaves to the probation officer the 'final say' on whether to
    impose   a   condition   of   supervised    release   nor   implicates   a
    significant deprivation of liberty."        Mejia-Banegas, 32 F.4th at
    452.
    IV.
    Affirmed.
    - 19 -