United States v. Devon Hunt ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 10, 2016 Decided December 20, 2016
No. 15–3084
UNITED STATES OF AMERICA,
APPELLEE
v.
DEVON CLEVELAND H UNT, ALSO KNOWN AS MAN,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cr-00306-1)
Edward C. Sussman, appointed by the court, argued the
cause and filed the briefs for the appellant.
Jason B. Feldman, Assistant United States Attorney,
argued the cause for the appellee. Elizabeth Trosman and
George P. Eliopoulos, Assistant United States Attorneys, were
with him on the brief.
Before: HENDERSON and PILLARD, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON , Circuit Judge: Devon
Hunt has a long history of drug dealing. Over the years he has
done much of his business at Potomac Gardens, a housing
project in southeast Washington, D.C. In this case, he
conspired to distribute heroin from there. He pleaded guilty
pursuant to a plea agreement in which he anticipatorily waived
his right to appeal certain aspects of his sentence. The district
court sentenced him to 62 months of imprisonment, to be
followed by five years of supervised release. Without saying
why, the court conditioned Hunt’s supervised release on his
staying away from Potomac Gardens. Hunt objected to the
condition but not to the lack of explanation.
Hunt now appeals, challenging both the stay-away
condition and the district court’s failure to explain it. The
government argues that Hunt’s appeal waiver bars his claims.
We disagree. The waiver contains ambiguities that the court
compounded during the plea colloquy. We construe the
ambiguities against the government, which drafted the plea
agreement and provided no clarification during the colloquy.
We nevertheless uphold the stay-away condition because
Hunt’s claims fail on the merits. First, because he did not
object to the court’s failure to explain the condition, we review
his procedural claim for plain error only. To the extent there
was a procedural error, it was not plain and did not affect his
substantial rights. Second, as a substantive matter, the
condition is well within the court’s wide discretion. It will
sensibly keep Hunt away from a neighborhood in which he has
conducted numerous drug deals. And because he neither lives
in the neighborhood nor alleges that he has family there, the
condition does not unduly restrict his liberty.
3
I. BACKGROUND
A. HUNT’S OFFENSES, PAST AND PRESENT
Hunt has ties with Potomac Gardens but they are not to his
credit. In 1987, he conducted at least three heroin deals there.
In 1990, he assaulted police officers there. In 1994, he again
participated in a series of heroin sales there. In the process, he
threatened security guards and told a young child to keep an
eye out for police. After he pleaded guilty to conspiracy
based on the 1994 conduct, a long jail term kept him away from
Potomac Gardens until at least 2006. In June 2009, the D.C.
Housing Authority barred him from the complex. He was not
deterred: narcotics officers found him at Potomac Gardens just
a few months later.
From late 2012 to early 2013, while residing elsewhere,
Hunt once again used Potomac Gardens as a base of operations
for drug dealing. He repeatedly sold heroin from there
through a middleman to a confidential source. The deals
involved a total of more than 100 grams of heroin. Based on
those deals, the government charged him here with conspiring
to distribute and to possess with intent to distribute 100 grams
or more of heroin, in violation of 21 U.S.C. § 846. It also
charged him with six related drug offenses.
B. THE GUILTY PLEA
Hunt was arrested and agreed to plead guilty to the
conspiracy count in exchange for the government’s dismissal
of the other counts. The parties stipulated to an imprisonment
range of 60 to 65 months and a five-year term of supervised
release. Pursuant to Rule 11(c)(1)(C) of the Federal Rules of
Criminal Procedure, the parties further agreed that the
sentencing range and five-year term of supervised release
would bind the district court if it accepted the plea agreement.
4
Finally, Hunt agreed to waive some of his appellate rights with
respect to his sentence. In pertinent part, the appeal waiver
stated:
[Hunt] understands that federal law,
specifically 18 U.S.C. § 3742, affords
defendants the right to appeal their sentences in
certain circumstances. [Hunt] agrees to waive
the right to appeal the sentence in this case,
including any term of imprisonment, fine,
forfeiture, award of restitution, term of
supervised release, authority of the Court to set
conditions of release, and the manner in which
the sentence was determined, except to the
extent the Court sentences [Hunt] above the
statutory maximum or guidelines range
determined by the Court or [Hunt] claims that
[he] received ineffective assistance of counsel,
in which case [he] would have the right to
appeal the illegal sentence or above-guidelines
sentence or raise on appeal a claim of
ineffective assistance of counsel, but not to
raise on appeal other issues regarding the
sentencing.
Plea Agreement, Dkt. No. 121 at 8.
The district court held a plea hearing on the same day that
Hunt signed the plea agreement. Midway through the
hearing, the court told him that “you [are] generally giving up
your rights to appeal,” with certain “exceptions.” Plea Tr. 31
(Aug. 13, 2015). As relevant here, the court said Hunt could
appeal if he “think[s] the sentence is illegal or it exceeds the
applicable Sentencing Guidelines range or resulted from
ineffective assistance of counsel . . . .” Id. Later in the
5
hearing, the court again discussed the appeal waiver but did not
suggest, as before, that the waiver permits appeal from an
“illegal” sentence. Id. at 51. The government did not object
to the court’s inconsistent characterizations of the waiver or
otherwise offer clarification. The court accepted Hunt’s
guilty plea.
C. SENTENCING
In a presentencing memorandum, the government
emphasized Hunt’s “long term connection” to criminal activity
at Potomac Gardens and asked the district court to “order as a
condition of [his] supervised release that [he] stay away from”
the complex. Government’s Mem. in Aid of Sentencing, Dkt.
No. 136 at 7, 9.
At the sentencing hearing, the government renewed its
request for a stay-away condition. In support, it listed the
crimes that Hunt committed at Potomac Gardens. The
government added that “[h]e hasn’t lived there.” Sent. Tr. 16
(Nov. 20, 2015). Without disputing the government’s
recitation—except to say that Hunt lived at Potomac Gardens
“at one point”—defense counsel responded that a “stay[-]away
order from a particular large area of town is inappropriate,”
especially because Hunt “knows many people there . . . who
have nothing to do with drugs or illegal activity.” Id. at 24.
Defense counsel also suggested that a stay-away condition was
unnecessary because Hunt was forbidden “to engage in illegal
activities” in any event. Id.Consistent with the plea agreement, the district court
sentenced Hunt to 62 months of imprisonment and five years of
supervised release. As a condition of that release, the court
ordered Hunt to stay away from Potomac Gardens.
Specifically, the court stated:
6
[W]ithout the prior approval of the U.S.
Probation Office, you shall not enter the
grounds of the Potomac Gardens housing
complex area in Southeast Washington, D.C.,
or any structure in it, as bounded by the areas of
Pennsylvania Avenue, Southeast, to the north;
14th Street, Southeast, to the east; K Street,
Southeast, to the south; and 11th Street,
Southeast, to the west.
Sent. Tr. 31. The court did not further explain the condition.
After imposing sentence, it asked: “Are there any other matters
we need to take up, Counsel?” Id. at 32-33. Defense counsel
responded: “I don’t believe so, sir.” Id. at 33.
II. ANALYSIS
As noted, Hunt challenges the stay-away condition and the
district court’s failure to explain it. Before addressing the
merits, we consider whether the appeal waiver bars his claims
ab initio. 1
1
Waiver of appellate rights is a threshold issue but not a
jurisdictional one. United States v. Shemirani, 802 F.3d 1, 3 & n.1
(D.C. Cir. 2015). We usually address it as an essential gateway to
the merits, see, e.g., United States v. Adams, 780 F.3d 1182, 1183-84
(D.C. Cir. 2015) (enforcing waiver without considering merits);
United States v. Guillen, 561 F.3d 527, 529, 532 (D.C. Cir. 2009)
(same), but not always, see, e.g., Shemirani, 802 F.3d at 3 (rejecting
sentencing claims on merits where alleged waiver implicated
“difficult” and “unsettled” issues better left for another day); United
States v. Ransom, 756 F.3d 770, 773 (D.C. Cir. 2014) (taking similar
approach). We decide the waiver issue here in the interest of sound
judicial administration: the provision in Hunt’s plea agreement is
one the government uses as a matter of standard practice in this
Circuit, Oral Arg. Recording 18:54-19:18, but it is ambiguous for
7
A. HUNT’S APPEAL WAIVER DOES NOT UNAMBIGUOUSLY
BAR HIS CHALLENGES TO THE STAY-AWAY C ONDITION .
Like a guilty plea more generally, see United States v.
Ruiz, 536 U.S. 622, 631-32 (2002), an appeal waiver serves the
important function of resolving a criminal case swiftly and
finally, see United States v. Hahn, 359 F.3d 1315, 1318, 1325
(10th Cir. 2004) (en banc) (per curiam). It also gives the
defendant “an additional bargaining chip” during plea
negotiations and thereby “increases the probability he will
reach a satisfactory plea agreement with the Government” in
the first place. United States v. Guillen, 561 F.3d 527, 530
(D.C. Cir. 2009). We have held that a “knowing, intelligent,
and voluntary” appeal waiver, even though “anticipatory,”
“generally may be enforced.” Id. at 529. And we ordinarily
dismiss an appeal falling within the scope of such a waiver.
See, e.g., United States v. Adams, 780 F.3d 1182, 1184 (D.C.
Cir. 2015); Guillen, 561 F.3d at 532; see also, e.g., United
States v. Ortega-Hernandez, 804 F.3d 447, 452 (D.C. Cir.
2015) (partially dismissing appeal based on waiver); In re
Sealed Case, 283 F.3d 349, 355 (D.C. Cir. 2002) (same). But
cf. United States v. West, 392 F.3d 450, 460-61 (D.C. Cir.
2004) (enforcing waiver but affirming district court’s
judgment rather than dismissing appeal).
But we will not bar the door to a criminal defendant’s
appeal if his waiver only arguably or ambiguously forecloses
his claims. A plea agreement is a contract and so we advert to
principles of contract law in interpreting it. United States v.
reasons we explain below. We strongly recommend that the
government revise the provision. Although we do not purport to
dictate particulars, one appropriate revision would be to change the
phrase “term of supervised release” to “term or condition of
supervised release.”
8
Henry, 758 F.3d 427, 431 (D.C. Cir. 2014); United States v.
Jones, 58 F.3d 688, 691 (D.C. Cir. 1995). Ambiguity in a plea
agreement, as in any other type of contract, is construed against
the drafter. Henry, 758 F.3d at 431; In re Sealed Case, 702
F.3d 59, 63 n.2, 65 (D.C. Cir. 2012); see RESTATEMENT
(SECOND) OF CONTRACTS § 206 (1981) (“In choosing among
the reasonable meanings of a promise or agreement or a term
thereof, that meaning is generally preferred which operates
against the party who supplies the words or from whom a
writing otherwise proceeds.”). The government drafted
Hunt’s plea agreement. If the agreement does not
unambiguously preclude Hunt from appealing the issues he
presents to us, he has not knowingly, intelligently and
voluntarily waived them. In re Sealed Case, 702 F.3d at 65
(where appeal waiver was “at the very least . . . ambiguous,”
defendant “did not knowingly waive his right to appeal”);
accord United States v. Binkholder, 832 F.3d 923, 926 (8th Cir.
2016) (court enforces appeal waiver only if, inter alia, “a given
appeal is clearly and unambiguously within [its] scope”)
(internal quotation omitted); Hahn, 359 F.3d at 1325 (holding
similarly).
Reviewing Hunt’s appeal waiver de novo, see Henry, 758
F.3d at 431; Guillen, 561 F.3d at 531, we conclude that it does
not unambiguously foreclose his challenges to the stay-away
condition. Like statutory construction, see, e.g., Jimenez v.
Quarterman, 555 U.S. 113, 118 (2009), interpretation of a plea
agreement begins with plain language, see, e.g., Ramsey v. U.S.
Parole Comm’n, 840 F.3d 853, 860 (D.C. Cir. 2016). The key
language of the appeal waiver provides that Hunt “agrees to
waive the right to appeal the sentence in this case, including
any term of imprisonment, fine, forfeiture, award of restitution,
term of supervised release, authority of the Court to set
conditions of release, and the manner in which the sentence
was determined . . . .” Plea Agreement, Dkt. No. 121 at 8.
9
One reasonable interpretation of the provision is that Hunt
waived the right to appeal any aspect of his sentence, including
the conditions of supervised release and the manner in which
they were imposed. After all, the word “including” is
ordinarily illustrative rather than limiting. See, e.g., Bloate v.
United States, 559 U.S. 196, 206-07 (2010). Also, supervised
release and the conditions thereof are part of “the sentence” by
statutory default. 18 U.S.C. §§ 3583(a), 3742(a)(3); see
United States v. Higgins, 739 F.3d 733, 738 & nn.11-12 (5th
Cir. 2014).
We are not convinced, however, that the only permissible
interpretation of the provision is the one set out above or that
Hunt read it that way when he signed the plea agreement. He
might reasonably have believed that the clauses about his
“term of supervised release” and the “authority of the Court to
set conditions of release” occupy the field as to supervised
release, displacing the more general waiver in that context.
See Gozlon-Peretz v. United States, 498 U.S. 395, 407 (1991)
(ordinarily, “[a] specific provision controls over one of more
general application”). And neither clause about supervised
release unambiguously bars the claims Hunt advances in this
Court.
By waiving his right to appeal any “term of supervised
release,” Hunt did not necessarily give up the right to appeal a
condition of such release. True, “term” can mean “condition.”
BLACK’ S LAW D ICTIONARY 1698 (10th ed. 2014). But in the
context of Hunt’s appeal waiver, it more likely connotes
“duration.” WEBSTER’ S THIRD NEW INTERNATIONAL
DICTIONARY , UNABRIDGED 2358 (1993). The provision
covers “any term of imprisonment . . . [and] term of supervised
release.” Plea Agreement, Dkt. No. 121 at 8. As the
government does not dispute, “term of imprisonment” refers to
the duration of Hunt’s imprisonment. It likely follows that
10
“term of supervised release,” appearing in the same sentence as
“term of imprisonment,” refers to the duration of Hunt’s
supervised release. See Mills Music, Inc. v. Snyder, 469 U.S.
153, 164-65 (1985) (“It is logical to assume that the same word
has the same meaning when it is . . . used earlier in the same
sentence.”); see also RESTATEMENT (SECOND) OF CONTRACTS
§ 202(2) (contract “is interpreted as a whole”).
Likewise, by waiving his right to challenge the “authority
of the Court to set conditions of release,” Plea Agreement, Dkt.
No. 121 at 8 (emphasis added), Hunt did not unambiguously
give up the right to appeal the stay-away condition itself. He
does not claim that the condition is ultra vires. Cf. United
States v. Malenya, 736 F.3d 554, 557 (D.C. Cir. 2013).
Instead, the gravamen of his appeal is that the condition “was
imposed in violation of law,” 18 U.S.C. § 3742(a)(1), because
the court did not adequately explain it under 18 U.S.C. §
3553(c) and because it is substantively unreasonable under 18
U.S.C. §§ 3553(a) and 3583(d).
Finally, instead of clarifying the plea agreement’s
ambiguities, the plea colloquy exacerbated them. The district
court indicated—without correction or qualification from the
government—that one of the “exceptions” to Hunt’s
“general[]” waiver permits him to appeal if he “think[s] the
sentence is illegal . . . .” Plea Tr. 31. Consistent with our
analysis above, Hunt might reasonably have understood the
court to mean he could appeal a supervised release condition
that, in his view, “was imposed in violation of law” because
procedurally or substantively erroneous. 18 U.S.C. §
3742(a)(1); see United States v. Godoy, 706 F.3d 493, 495
(D.C. Cir. 2013) (in everyday usage, “illegal sentence” means
one that is erroneous for legal reasons). A criminal defendant
may take a district court’s “oral pronouncement” about a
written waiver at face value even if it “mischaracterizes” the
11
waiver, Godoy, 706 F.3d at 495-96, and even if the waiver is
otherwise unambiguous, see United States v. Kaufman, 791
F.3d 86, 88 (D.C. Cir. 2015); United States v. Wilken, 498 F.3d
1160, 1167-69 (10th Cir. 2007). A fortiori, and especially
because the government made no objection and offered no
clarification, see Kaufman, 791 F.3d at 88; Godoy, 706 F.3d at
495, Hunt was entitled to rely on the court’s characterization of
the ambiguous waiver as permitting him to appeal a supervised
release condition resting on (in his view) procedural and
substantive legal error.
B. HUNT’S C HALLENGES TO THE STAY-AWAY CONDITION
ARE MERITLESS.
Although Hunt has not waived his claims about the
stay-away condition, they lack merit.
1. The district court did not commit
plain procedural error.
Hunt did not object at the sentencing hearing to the district
court’s failure to substantiate the stay-away condition. Sent.
Tr. 32-33 (Q: “Are there any other matters we need to take up,
Counsel?” A: “I don’t believe so, sir.”). Accordingly, we
review his procedural challenge for plain error only. United
States v. Sullivan, 451 F.3d 884, 896 (D.C. Cir. 2006)
(reviewing for plain error where defendant and his lawyer “sat
in court while the judge pronounced the sentence, but they
never voiced an objection on the ground that the District Court
had failed to substantiate the conditions of release”); see
United States v. Bigley, 786 F.3d 11, 13 (D.C. Cir. 2015) (per
curiam) (“When a defendant fails to timely raise a procedural
reasonableness objection at sentencing, this Court reviews for
12
plain error.”). 2 Under the plain-error standard, Hunt must
demonstrate that the district court (1) “committed error”; (2)
“that is plain” or obvious; (3) “that affects [his] substantial
rights”; and (4) that “‘seriously affect[s] the fairness, integrity,
or public reputation of judicial proceedings.’” United States
v. Locke, 664 F.3d 353, 357 (D.C. Cir. 2011) (quoting Johnson
v. United States, 520 U.S. 461, 467 (1997)) (second alteration
in Johnson). Assuming without deciding that Hunt meets the
first requirement, we conclude that he cannot satisfy the other
three.
Neither the United States Supreme Court nor our Court
has squarely decided whether a district court must make
express findings to substantiate a special condition of
supervised release. 3 That alone dooms Hunt’s claim of plain
2
Hunt notes that he objected to the condition itself.
Appellant’s Br. 15. That objection did not preserve his claim about
the lack of explanation. United States v. Deatherage, 682 F.3d 755,
763 (8th Cir. 2012) (“A general objection at sentencing to the
substantive restriction imposed by a special condition is not enough
to preserve an allegation that the court did not adequately explain its
specific reasons for imposing the special condition.”); United States
v. Watson, 582 F.3d 974, 981 (9th Cir. 2009) (similar holding).
3
Our sister circuits are divided on the issue. Compare United
States v. Falor, 800 F.3d 407, 411 (7th Cir. 2015) (express findings
required); United States v. Martinez-Torres, 795 F.3d 1233, 1238
(10th Cir. 2015) (same); United States v. Salazar, 743 F.3d 445, 451
(5th Cir. 2014) (same); United States v. Poitra, 648 F.3d 884, 889
(8th Cir. 2011) (same); United States v. Miller, 594 F.3d 172, 184
(3d Cir. 2010) (same); United States v. Armel, 585 F.3d 182, 186 (4th
Cir. 2009) (same); United States v. Brogdon, 503 F.3d 555, 563 (6th
Cir. 2007) (same); and United States v. Brown, 653 F. App’x 50, 51
(2d Cir. 2016) (unpublished summary order) (same), with United
States v. Garrasteguy, 559 F.3d 34, 42 (1st Cir. 2009) (express
findings not required where reasons can be inferred from record);
13
procedural error. United States v. Terrell, 696 F.3d 1257,
1260 (D.C. Cir. 2012) (error ordinarily cannot be “plain”
unless “a clear precedent in the Supreme Court or this circuit
establishe[s] its erroneous character”). To cinch matters, we
have held in an analogous case that a lack of findings, even if
error, was not plain error. Sullivan, 451 F.3d at 896 (affirming
sentence where defendant did not contemporaneously object to
district court’s “fail[ure] to substantiate the conditions of
release” and did not advance any “viable basis for ascribing
plain error to” sentencing judge). We see no basis for a
different conclusion here.
Nor does the lack of explanation or findings affect Hunt’s
substantial rights or call into question the fairness, integrity or
public reputation of judicial proceedings. The district court
imposed the stay-away condition moments after the parties
argued about its merits. The sequence and timing strongly
suggest the court endorsed the government’s arguments that
(1) Hunt’s many crimes at Potomac Gardens warranted the
condition; and (2) the condition did not unduly restrict his
liberty because “[h]e hasn’t lived” at the complex. Sent. Tr.
15-16. We discern no prejudice from the court’s failure to say
out loud that it agreed with the government. See United States
v. Balon, 384 F.3d 38, 41 n.1 (2d Cir. 2004) (defendant
suffered no prejudice from any error in court’s failure
“expressly [to] articulate on the record why it was imposing
[certain] conditions of supervised release” because reason was
“self-evident in the record”); cf. Rita v. United States, 551 U.S.
338, 359 (2007) (“Where a matter is . . . conceptually simple
. . . and the record makes clear that the sentencing judge
United States v. Betts, 511 F.3d 872, 876 & n.8 (9th Cir. 2007)
(same); United States v. Ridgeway, 319 F.3d 1313, 1317 (11th Cir.
2003) (similar).
14
considered the evidence and arguments, we do not believe the
law requires the judge to write more extensively.”).
2. The district court did not abuse its discretion
under section 3583(d).
The government concedes, and we agree, that Hunt
preserved his substantive challenge to the stay-away condition
by objecting to it at the sentencing hearing. Nonetheless, as
with most sentencing matters, the standard of review is
deferential. Under 18 U.S.C. § 3583(d), a district court may
impose “any condition . . . it considers to be
appropriate”—including “a discretionary condition” typically
associated with probation under section 3563(b)—so long as
the condition:
(1) is reasonably related to the [sentencing]
factors set forth in section 3553(a)(1), (a)(2)(B),
(a)(2)(C), and (a)(2)(D);
(2) involves no greater deprivation of liberty
than is reasonably necessary for the purposes
set forth in section 3553(a)(2)(B), (a)(2)(C),
and (a)(2)(D); and
(3) is consistent with any pertinent policy
statements issued by the Sentencing
Commission pursuant to 28 U.S.C. 994(a) . . . .
The district judge has “wide discretion when imposing
terms and conditions of supervised release” under section
3583(d) because he is in the best position to “measure[] the
conditions imposed against the statutorily enumerated
sentencing goals.” Sullivan, 451 F.3d at 895 (internal
quotation omitted); see Gall v. United States, 552 U.S. 38, 51
(2007) (“The judge sees and hears the evidence, makes
15
credibility determinations, has full knowledge of the facts and
gains insights not conveyed by the record.”) (internal quotation
omitted). We therefore review the substantive validity of the
stay-away condition under an abuse-of-discretion standard.
United States v. Burroughs, 613 F.3d 233, 240 (D.C. Cir.
2010); Sullivan, 451 F.3d at 895.
The district court did not abuse its discretion in
concluding, albeit implicitly, that the stay-away condition is
tailored to Hunt’s criminal history, 18 U.S.C. § 3553(a)(1), will
deter him from criminal conduct, id. § 3553(a)(2)(B), and will
protect the public from further crimes at his hands, id. §
3553(a)(2)(C). Hunt’s primary contention to the contrary is
that the condition does not prevent him from dealing drugs
anywhere outside Potomac Gardens. Appellant’s Br. 20-21
(“[D]rug dealing is hardly a crime that knows geographical
boundaries. . . . If a defendant is inclined to continue his
criminal behavior while on supervised release, he certainly will
find a suitable locale for his activities.”). We do not agree that
Hunt’s potential recidivism renders the condition
unreasonable. As defense counsel noted at sentencing,
another condition of Hunt’s supervised release prohibits him
from “commit[ting] another federal, state, or local crime.”
Sent. Tr. 30. And it is a federal offense to deal or conspire to
deal illegal drugs. See, e.g., 21 U.S.C. §§ 841(a), 846. The
stay-away condition dovetails with the general prohibition: the
point is to make drug dealing more difficult for or less tempting
to Hunt in case he decides to break the law again. The fact
that he participated in so many deals at Potomac Gardens
suggests he has established drug contacts there. If the
stay-away condition does anything to dry up his sources of
supply or his customer base, it can only help keep him out of
trouble and thereby serve the purposes of sentencing. See
United States v. Watson, 582 F.3d 974, 983 (9th Cir. 2009)
(“Separating a convicted felon from negative influences in his
16
prior life is reasonably related to the permissible goals of
deterrence and rehabilitation and is a common purpose of
supervised release.”).
Nor does the stay-away condition unduly restrict Hunt’s
liberty. 18 U.S.C. § 3583(d)(2). The Congress contemplated
that a district court may require a defendant—as “a
discretionary condition” of supervised release, id. §
3583(d)—to “refrain from frequenting specified kinds of
places” and “from residing in a specified place or area,” id. §
3563(b)(6), (13). We reject Hunt’s contention that the district
court went too far by “preclud[ing him] from entering a rather
large section of the District of Columbia.” Appellant’s Reply
Br. 6. For starters, “rather large” is a rather large
overstatement. The condition keeps Hunt away from a single
housing project, plus about an extra city block in each
direction. Using a Google map to measure the metes and
bounds the district court plotted, we take judicial notice that the
restricted area covers about 50 acres. See United States v.
Burroughs, 810 F.3d 833, 835 n.1 (D.C. Cir. 2016) (taking
judicial notice of Google map whose “‘accuracy [could not]
reasonably be questioned’” for relevant purpose) (quoting FED.
R. EVID . 201(b)(2)). There are 640 acres in a square mile, see
Leo Sheep Co. v. United States, 440 U.S. 668, 686 n.23 (1979),
which means the restricted area covers about 0.078 square
miles. The District of Columbia encompasses about 68
square miles. See Jones v. D.C. Armory Bd., 438 F.2d 138,
141 (D.C. Cir. 1970) (per curiam). In other words, the
restricted area comprises just over one one-thousandth of the
District. That is a minimal imposition, especially when
compared to the city- and county-wide restrictions that our
sister circuits have upheld in analogous cases. See, e.g.,
Watson, 582 F.3d at 977-78, 983-85 (gang member prohibited
from entering San Francisco); United States v. Garrasteguy,
559 F.3d 34, 40-44 (1st Cir. 2009) (drug dealers prohibited
17
from entering Suffolk County, Massachusetts) (plain-error
review); United States v. Sicher, 239 F.3d 289, 289-93 (3d Cir.
2000) (drug dealer prohibited from entering two Pennsylvania
counties) (plain-error review); United States v. Cothran, 855
F.2d 749, 750-53 (11th Cir. 1988) (drug dealer prohibited from
entering Fulton County, Georgia).
Furthermore, like the conditions in some of the cases cited
above, the stay-away condition here is not absolute. It forbids
Hunt to enter Potomac Gardens and the immediate vicinity
“without the prior approval of the U.S. Probation Office.”
Sent. Tr. 31. If he has any legitimate cause to enter the
complex—e.g., to visit family—he can prevail upon his
probation officer, who we presume will act reasonably under
the circumstances. See United States v. Love, 593 F.3d 1, 12
(D.C. Cir. 2010). Hunt does not even allege that he resides or
has family at Potomac Gardens. The closest he comes is his
assertion that he lived there “at one point,” Sent. Tr. 24, and
“has been a member of the Potomac Gardens community for
much of his adult life,” Appellant’s Br. 20. He claims no
specific hardship, however, and it is hard to see how he could.
His counsel acknowledged at oral argument that he did not live
there at the time of the offense. Oral Arg. Recording
8:18-10:00. And to the extent he has friends there who are not
involved in the drug trade, Sent. Tr. 24, he can meet them
anywhere he chooses outside the restricted boundaries, which
are unmistakably defined.
The district court did not plainly err in failing to explain
the stay-away condition and did not abuse its discretion in
imposing it. Accordingly, we affirm the court’s judgment.
So ordered.