United States v. Charles Kahalehoe , 693 F. App'x 597 ( 2017 )

FILED
NOT FOR PUBLICATION JUL 5 2017
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10359
Plaintiff-Appellee, D.C. No. 1:10-cr-00232-HG
v.
MEMORANDUM*
CHARLES M.F. KAHALEHOE,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen Gillmor, District Judge, Presiding
Alan C. Kay, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Charles M.F. Kahalehoe appeals special condition of supervised release
number seven, which was imposed following revocation of his supervised release
and which states: “If the defendant is able to be compliant with the conditions of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
supervised release, the Court would have no objection to the defendant resuming
school in the fall of 2017.” We have jurisdiction under 28 U.S.C. § 1291, and we
remand for further proceedings.
As an initial matter, we note that Kahalehoe’s supervised release was
revoked again while this appeal was pending. He was sentenced to a custodial
term of six months, to be followed by a supervised release term of 50 months, and
the challenged condition was reimposed, this time as special condition number
eight. In light of these circumstances, we agree with Kahalehoe that his appeal is
not moot. See Foster v. Carson, 347 F.3d 742, 746 (9th Cir. 2003) (explaining
“capable of repetition, yet evading review” exception to mootness).
We also agree that the challenged condition as written is vague as to the
meaning of “school” and as to what constitutes compliance sufficient to permit
Kahalehoe’s return to school. See United States v. Sales, 476 F.3d 732, 737 (9th
Cir. 2007) (this court must review the language of the condition as written and
defendant “cannot be left to guess” about the intended meaning of that language).
Therefore, we remand to the district court to vacate special condition eight in the
February 22, 2017, judgment. On remand, the court must explain how any
educational restriction is reasonably related to deterrence, protection of the public,
2 16-10359
and Kahalehoe’s rehabilitation, and involves no greater deprivation of liberty than
is reasonably necessary to achieve those goals. See 18 U.S.C. § 3583(d).
REMANDED with instructions.
3 16-10359