United States v. Earlson Tullie ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 8 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10001
19-10068
Plaintiff-Appellee,
D.C. No.
v. 3:16-cr-08042-DJH-1
EARLSON TULLIE,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Diane J. Humetewa, District Judge, Presiding
Submitted April 17, 2020**
San Francisco, California
Before: HAWKINS and PAEZ, Circuit Judges, and RESTANI,*** Judge.
In this consolidated appeal, Earlson Tullie challenges three conditions of
supervised release that were imposed after he pled guilty to assaulting a child
*
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 Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
under the age of sixteen. We affirm in part, vacate in part, and remand for further
proceedings consistent with this disposition.
1. We agree that the district court initially erred when it delegated to the
probation officer the authority to decide whether Tullie should participate in a sex
offender treatment program but conclude that the error was not plain. As we and
other courts have held, only a district court can impose such requirements. See
United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009) (striking language
from special condition requiring sex offender treatment, “which may include
inpatient treatment, as approved and directed by the Probation Officer”).
Nonetheless, the district court itself later imposed sex offender treatment
after Tullie’s first and second revocation hearings, after considering the results of
Tullie’s psychosexual exam, his prior incriminating statements, and his
concealment of his contacts with minors while on supervised release. Thus,
although the initial delegation of authority to the probation officer was improper,
the district court eventually determined on its own that sex offender treatment was
necessary. We thus cannot say that “the condition would not have been imposed
had the error not occurred.” United States v. Barsumyan, 517 F.3d 1154, 1162 (9th
Cir. 2008).
2. We agree, and the government concedes, the district court erred when its
written revocation order diverged from an “unambiguous” oral pronouncement.
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United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993). At the hearing, the
district court ordered Tullie to “maintain full-time employment and/or schooling as
directed by your probation officer,” but the district court’s written revocation order
dropped the reference to “schooling” and added language authorizing the probation
officer to require Tullie to perform “up to 20 hours of community service per
week” if he was not employed full-time. The oral pronouncement “must control.”
Hicks, 997 F.2d at 597.
3. We agree that the district court plainly erred by imposing special
condition number nine, which restricts Tullie from “engaging in any occupation,
business, volunteer activity or profession” carrying “the potential to be alone with
children,” because the condition is overbroad. (Emphasis added.) Compliance
with this condition would leave only professions in industries that rigidly prohibit
the presence of minors, such as a bar, casino, or adult-entertainment venue.
Nothing in the record suggests Tullie had an ongoing propensity to harm children,
particularly random children he might “potentially” encounter on the job. And we
have rejected similarly broad conditions, even when the defendant was convicted
of more serious crimes. See, e.g., United States v. Wolf Child, 699 F.3d 1082,
1087 (9th Cir. 2012) (striking condition prohibiting defendant from dating anyone
who has minor children).
Further, the error was plain because it was “clear” that the condition
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contained no qualifying or limiting principle and thus prohibited far more liberty
than was reasonably necessary to accomplish the goals of deterrence, protection of
the public, or rehabilitation. See 18 U.S.C. § 3583(d); Wolf Child, 699 F.3d at
1087. The error also affected substantial rights because “the condition would not
have been imposed had the error not occurred.” Barsumyan, 517 F.3d at 1162.
Last, a legally void condition that carries with it the threat of punishment seriously
affects the fairness, integrity, or public reputation of judicial proceedings.
AFFIRMED in part, VACATED in part, and REMANDED.
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