United States v. Guadalupe Hernandez ( 2019 )

FILED
NOT FOR PUBLICATION
SEP 11 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10264
Plaintiff-Appellee, D.C. No.
1:18-cr-00083-DAD-1
v.
GUADALUPE ROBERT HERNANDEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted August 15, 2019**
Pasadena, California
Before: CALLAHAN and CHRISTEN, Circuit Judges, and WU,*** District Judge.
Defendant-Appellant Guadalupe Robert Hernandez appeals the district
court’s imposition of two special conditions of supervised release after it revoked
*
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).
***
The Honorable George H. Wu, United States District Judge for the
Central District of California, sitting by designation.
his original sentence of supervised release. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.1
Hernandez objected at sentencing to the two special conditions that he now
challenges on appeal. Condition 1 requires that he “provide the probation officer
with access to any requested financial information.” Condition 8 requires that he
provide the probation officer with “all requested business/personal phone records,”
“any existing contracts with telephone line/cable service providers,” and “written
authorization to request a record of all outgoing or incoming phone calls from any
service provider.”
We review the district court’s imposition of the conditions for an abuse of
discretion. United States v. Gnirke, 775 F.3d 1155, 1159 (9th Cir. 2015).
1. Hernandez first argues the district court committed procedural error by
failing to adequately explain how conditions 1 and 8 relate to the goals of
supervised release. “A sufficient explanation ‘permit[s] meaningful appellate
review’ and ‘communicates that the parties’ arguments have been heard, and that a
reasoned decision has been made.’” Id. (alteration in original) (quoting United
States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc)). “A detailed
1
Because the parties are familiar with the facts and the procedural history,
we do not recount them here.
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explanation from the court is not always required; in some cases, ‘adequate
explanation . . . may also be inferred from the [Pre-Sentence Report] or the record
as a whole.’” Id. at 1159–60 (alterations in original) (quoting United States v.
Daniels, 541 F.3d 915, 922 (9th Cir. 2008)).
Here, the district court listened to the parties’ arguments and explained its
decision to impose the challenged conditions by noting Hernandez’s underlying
drug trafficking conviction. And even if we found the stated reason insufficient to
permit appellate review, we can infer an adequate explanation from the record,
which includes a presentence report and a summary of Hernandez’s violation
conduct. We conclude the district court did not err procedurally. See id. at 1160.
2. Hernandez next argues that conditions 1 and 8 are substantively
unreasonable. “A supervised release condition is substantively unreasonable if it
‘is not reasonably related to the goal[s] of deterrence, protection of the public, or
rehabilitation of the offender.’” United States v. Wolf Child, 699 F.3d 1082, 1090
(9th Cir. 2012) (alteration in original) (quoting United States v. Collins, 684 F.3d
873, 892 (9th Cir. 2012)); see also 18 U.S.C. § 3583(d). A condition may also be
substantively unreasonable “if it infringes more on the offender’s liberty than is
‘reasonably necessary’ to accomplish these statutory goals.” Wolf Child, 699 F.3d
at 1090 (quoting 18 U.S.C. § 3583(d)(2)).
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As to condition 1, this court has already held “that certain defendants who
have been convicted of drug trafficking offenses may properly be required to
disclose the details of their personal finances as a condition of supervised release.”
United States v. Garcia, 522 F.3d 855, 862 (9th Cir. 2008). Hernandez’s
underlying conviction was for a drug trafficking offense, and he violated his
original supervised release term by engaging in unlawful drug use and failing to
participate in mandatory drug testing. We conclude the district court did not abuse
its discretion by imposing condition 1.
As to condition 8, the record also shows that the condition is reasonably
related to the goals of supervised release. The district court revoked Hernandez’s
original supervised release term because, in addition to his drug use violations, he
had failed to notify his probation officer of a change in residence. His probation
officer also explained that Hernandez failed to provide a working phone number or
maintain contact before absconding.
To avoid an overbroad reading of condition 8, however, we construe it to
require disclosure of only those “requested business/personal phone records” that
are in Hernandez’s name or that he controls. See Gnirke, 775 F.3d at 1166 (noting
that this court has occasionally “constru[ed] a facially broad condition more
narrowly to avoid a greater deprivation of defendant’s liberty than was reasonably
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necessary.” (citing United States v. Goddard, 537 F.3d 1087, 1089 (9th Cir.
2008)). So construed, we approve condition 8. This makes sense in light of other
language in condition 8, which also refers to Hernandez’s “existing contracts with
telephone line/cable service providers.” We note the probation officer’s exercise
of discretion in requesting records pursuant to condition 8 “will be subject to
judicial review to the same extent as other conditions of supervised release.” Id. at
1167.
3. Hernandez’s final argument is that condition 8 is an occupational
restriction as defined by section 5F1.5 of the United States Sentencing Guidelines,
which requires that the district court make certain findings that it did not make
here. A supervised release condition is an occupational restriction if it “prohibit[s]
the defendant from engaging in a specified occupation, business, or profession, or
limit[s] the terms on which the defendant may do so.” U.S.S.G. § 5F1.5(a).
This court previously held that a near-identical condition requiring
disclosure of “business/personal phone records,” also numbered condition 8, was
an occupational restriction. See United States v. Britt, 332 F.3d 1229, 1232 (9th
Cir. 2003). But we did so only “[t]o the extent that condition 8 [was] used to
enforce” a separate condition—not present here—that we deemed to be an
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occupational restriction. Id. In other words, we did not hold that condition 8,
standing alone, is an occupational restriction. We decline to do so here.2
AFFIRMED.
2
This concern is further allayed by our construction of condition 8, which
does not require that Hernandez produce his employer’s phone records.
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