United States v. Daniel Ray ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 9 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50024
Plaintiff-Appellee, D.C. No. 5:17-cr-00159-PA-2
v.
DANIEL RAY, AKA Popeye, AKA Daniel MEMORANDUM*
T. Ray, AKA Daniel Thomas Ray,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted April 12, 2022**
Pasadena, California
Before: CALLAHAN and VANDYKE, Circuit Judges, and EZRA,*** District
Judge.
The district court sentenced Appellant Daniel Ray (“Appellant”) to a
*
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 David A. Ezra, United States District Judge for the District of
Hawaii, sitting by designation.
95-month term of imprisonment and a 3-year term of supervised release. On
appeal, Appellant contends the district court erred by (1) failing to adequately
explain its reasons for imposing 95 months of imprisonment; and (2) improperly
delegating authority to the probation office for two of the conditions applicable to
Appellant’s supervised release. Because we conclude that (1) the district court
adequately explained its basis for imposing a 95-month term of imprisonment; and
(2) Appellant’s challenge to his supervised release conditions is premature, we
affirm.
While serving a federal prison term unrelated to the instant case, Appellant
was involved in a violent attack on another inmate and a jury found him guilty
under an aiding and abetting theory of liability. At Appellant’s initial sentencing,
the district court adopted a criminal history score which improperly included four
points for Appellant’s juvenile adjudications. Relying on the criminal history
score, the court used an inflated guideline range of 100 to 125 months in deciding
Appellant’s sentence. Because the juvenile adjudications should not have been
included in the criminal history score calculation, Appellant’s original sentence of
100 months was vacated on appeal and his case was remanded for resentencing.
United States v. Ray, 811 F. App’x 414, 417 (9th Cir. 2020). At resentencing, the
district court applied the correct guideline range of 84 to 105 months, sentenced
Appellant to a term of 95 months’ imprisonment, and imposed several supervised
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release conditions.
Before imposing Appellant’s new sentence, the district court applied
multiple 18 U.S.C. § 3553 factors to the facts of Appellant’s case and explained
why it was rejecting Appellant’s request for a downward variance. After the court
announced Appellant’s revised sentence, Appellant asked why his new sentence
was not at the bottom of his guideline range like his original sentence. The court
responded that, while there was some merit to the Government’s request that the
original sentence of 100 months be reimposed, the court chose to give Appellant
credit for his conduct since his original sentencing by reducing that sentence by
5 months. Appellant contends this explanation was procedurally inadequate.
However, because “the record makes clear that the sentencing judge considered the
relevant evidence and argument,” we affirm.1 See United States v. Vasquez-Cruz,
692 F.3d 1001, 1008 (9th Cir. 2012) (concluding there was no procedural error
where district court considered the § 3553 factors and explained that it saw no
basis to depart from the guideline range).
Appellant next argues that the district court improperly delegated authority
1
While the parties do not agree on what standard of review we should apply in
determining the adequacy of the district court’s sentencing explanation, we hold
that the court’s explanation was sufficient even if we were to review it de novo as
Appellant urges. See, e.g., United States v. Rangel, 697 F.3d 795, 803 n.7 (9th Cir.
2012) (declining to settle dispute surrounding applicable standard of review
because district court did not err even under more stringent standard).
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to the United States Probation Office (“Probation”) by imposing the following
supervised release conditions: (1) “[t]he defendant shall comply with the rules and
regulations of the United States Probation Office and Second Amended General
Order 20-04[;]” and (2) “[t]he defendant must follow the instructions of the
probation officer to implement the orders of the court, afford adequate deterrence
from criminal conduct, protect the public from further crimes of the defendant[,]
and provide the defendant with needed educational or vocational training, medical
care, or other correctional treatment in the most effective manner.” According to
Appellant, these conditions granted Probation “unfettered authority” to create
additional supervised release conditions.
At this point, none of the supervised release conditions the district court
imposed have been enforced.2 Thus, we conclude that Appellant’s challenge is
premature. See United States v. Romero, 676 F.2d 406, 407 (9th Cir. 1982)
(declining to “speculate on circumstances under which . . . probation could be
revoked”); United States v. Vega, 545 F.3d 743, 750 (9th Cir. 2008) (“If and when
supervised release is revoked, we will examine the findings to [e]nsure that
defendant’s due process right to notice of prohibited conduct has been observed
and to protect him from unknowing violations.” (cleaned up)).
2
In fact, Appellant is not expected to commence his term of supervised release for
nearly 10 years.
4
Appellant cites United States v. Phillips, 714 F.3d 754 (9th Cir. 2012), in
arguing that his challenge is not premature. In that case, the Ninth Circuit held that
Phillips “should not have to wait until after he was arrested and forced to endure
proceedings on [a violation of the challenged supervised release condition] in order
to have the condition declared vague or overbroad.” Id. at 768 n.13. However,
Phillips is distinguishable from the instant case. In Phillips, the court considered
the validity of an existing supervised release condition Phillips was expected to
comply with. Id. at 767. Here, on the other hand, Appellant asks us to imagine
release conditions that he anticipates Probation may take the liberty of imposing
sometime in the future. Doing so would be especially speculative considering the
conditions appear not to vest additional authority in the probation office, but rather
to address Appellant’s obligation to comply with Probation’s existing authority. In
other words, both conditions control what Appellant is obligated to do in relation to
Probation’s already vested authority.3
Considering the validity of the challenged conditions at this stage would
3
Indeed, were we to consider Appellant’s challenge on the merits, we would reach
the same result. Specifically, considering the district court carefully outlined
Probation’s authority and responsibilities in its judgment order, a reasonable
person would not understand the challenged conditions to grant Probation the sort
of sweeping authority Appellant claims. See Phillips, 704 F.3d at 768 (adopting a
“common sense reading” of challenged supervised release conditions and rejecting
unreasonable alternative interpretation).
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require us to guess at whether Probation may someday invent and enforce
additional supervised release conditions. We decline to speculate here.
AFFIRMED.
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