United States v. Hull ( 2018 )

FILED
United States Court of Appeals
Tenth Circuit
June 26, 2018
PUBLISH Elisabeth A. Shumaker
Clerk of Court
UNITED STATES COURT OF APPEALS
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 17-1086
KEITH HOWARD HULL,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. NO. 1:16-CR-00297-PAB-1)
Submitted on the briefs: *
Virginia L. Grady, Federal Public Defender, and Veronica S. Rossman, Assistant
Federal Public Defender, Denver, Colorado, on the briefs for Appellant.
Robert C. Troyer, Acting United States Attorney, and J. Bishop Grewell,
Assistant United States Attorney, Denver, Colorado, on the brief for Appellee..
Before TYMKOVICH, Chief Judge, MURPHY, and McHUGH, Circuit Judges.
MURPHY, Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
I. Introduction
Defendant-Appellant Keith Howard Hull challenges one of the conditions
of supervised release imposed by the district court when it sentenced him for
committing bank robbery. The condition requires him to notify third parties of
risks he may pose to them. According to Hull, the condition is unconstitutionally
vague, an unconstitutional delegation of judicial authority, and an unlawful
occupational restriction. Exercising jurisdiction under 18 U.S.C. § 3742(a) and
28 U.S.C. § 1291, we affirm Hull’s sentence.
II. Background
Hull was charged by indictment with one count of bank robbery, in
violation of 18 U.S.C. § 2113(a). He pleaded guilty to the charge and a
Presentence Investigation Report (“PSR”) was prepared. The PSR recommended
a sentence of seventy-seven months and a three-year term of supervised release.
The term of supervised release included all the standard conditions adopted by the
United States District Court for the District of Colorado. Hull filed written
objections to the PSR. Relevant to the issue raised on appeal, he objected to the
recommendation that the district court impose Standard Condition Twelve, which
reads as follows:
If the probation officer determines that you pose a risk to another
person (including an organization), the probation officer may require
you to notify the person about the risk and you must comply with
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that instruction. The probation officer may contact the person and
confirm that you have notified the person about the risk.
USSG § 5D1.3(c)(12).
At the sentencing hearing, the district court imposed a sentence of ninety-
four months’ incarceration to be followed by a three-year term of supervised
release. The court also imposed, inter alia, Standard Condition Twelve, stating it
agreed with the probation department that it would be appropriate for the
probation department to invoke the condition “under the right circumstances.”
III. Discussion
A. Standard of Review
Hull raises three challenges to his sentence. He asserts Standard Condition
Twelve is unconstitutionally vague, constitutes an unlawful delegation of judicial
authority to the probation department, and is an unlawful occupational restriction.
Because Hull preserved these challenges by making them below, our review is for
abuse of discretion. United States v. Muñoz, 812 F.3d 809, 817 (10th Cir. 2016).
“The district court abuses its discretion when a ruling is based on a clearly
erroneous finding of fact, an erroneous conclusion of law, or a clear error of
judgment.” Id.
B. Vagueness Challenge
In his main challenge to Standard Condition Twelve, Hull argues the
condition is unconstitutionally vague and violates the Due Process Clause of the
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Fifth Amendment. Specifically, he asserts the condition is insufficiently clear
and specific to fairly guide his conduct and lacks any standard for defining risk.
“[W]e use common sense to guide our interpretation of supervised release
conditions.” Muñoz, 812 F.3d at 815. Applying a “common sense, non-technical
reading” to Standard Condition Twelve, we conclude it is not unconstitutionally
vague. 1 United States v. Llantada, 815 F.3d 679, 682 (10th Cir. 2016).
As to Hull’s assertion he lacks sufficient notice of what conduct would
constitute a violation of Standard Condition Twelve, the condition clearly and
specifically states that Hull must provide notice when required to do so by his
probation officer. There is no ambiguity in this directive. Hull’s obligation to
notify third parties when so instructed by his probation officer is clear from the
terms of the condition and can be understood by any ordinary person. See United
States v. Corrow, 119 F.3d 796, 802 (10th Cir. 1997).
Hull makes the related argument that Standard Condition Twelve is vague
because it does not provide his probation officer with sufficient guidance to
1
Although the government does not so argue, it is possible Hull cannot raise
a due process vagueness challenge to Standard Condition Twelve. In Beckles v.
United States, the Supreme Court noted it has invalidated only two types of
criminal laws as void for vagueness: “laws that define criminal offenses and laws
that fix the permissible sentences for criminal offenses.” 137 S. Ct. 886, 892
(2017). The Beckles Court held that the advisory Sentencing “Guidelines are not
subject to a vagueness challenge under the Due Process Clause” because, instead
of fixing “the permissible range of sentences,” they only “guide the exercise of a
court’s discretion in choosing an appropriate sentence within the statutory range.”
Id.
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determine the sort of risks that trigger application of the condition. This
argument also fails. Sufficient guidance was given by the district court at
sentencing when it stated:
And in terms of the objection to standard condition No. 12
regarding the notification about a risk, I agree with the Probation
Department on that one. For instance, let’s assume that Mr. Hull
gets released and then he notifies the Probation Department that he is
now employed by a cleaning service, and one of the places that they
clean are banks. That would be a really good reason to have him
notify the cleaning service that he has been convicted of bank
robbery before, not once, but a couple of times.
....
So I think the objection to that particular condition is
overruled. And I think that the nature of the defendant’s criminal
history, in particular, you know, home invasion robberies, bank
robberies, it’s perfectly appropriate that there would be some type of
condition like that that would—that could be invoked by the
Probation Department under the right circumstances, so I overrule
the objection to that.
These statements provide clear direction to the probation department by tying
Standard Condition Twelve to the risks associated with Hull’s criminal history,
including home invasion robberies and bank robberies. Offering further guidance,
the court stated it agreed with the probation department’s justification for
recommending Standard Condition Twelve. That justification was contained in
the probation officer’s following response to Hull’s written objection to the PSR.
The purpose of this condition is to notify others of physical or
financial harm that may be caused by the defendant to provide them
with the necessary information to avoid risk of victimization.
Further, this condition serves the statutory sentencing purpose of
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public protection at 18 U.S.C. §3553(a)(2)(C). From an
implementation perspective, the identification and management of
third party risk requires a careful analysis by the probation officer
that considers both the seriousness of the risk created and the
possible jeopardy to the offender’s employment or other aspects of
rehabilitation. Reasonably foreseeable risk may be addressed in
numerous ways, including changes in supervision strategies and
disclosures to third parties, just to name a few. In many cases, there
will be no identified risk; therefore, this condition is never
implemented. However, due to the fluid nature of an individual’s life
circumstances, the determination of whether specific third party risk
exists must be made in real time during a term of supervision; not
during the sentencing process. As such, the Probation Office asserts
this condition is necessary for the protection of potential third parties
at risk, and recommends that it be imposed as approved in General
Order 2016-1 to allow for the ongoing assessment of risk during the
term of supervision.
Read together with the district court’s oral statements and applying a
common sense approach, Standard Condition Twelve provides sufficient guidance
to the probation department. Hull’s prior convictions for bank robbery and home
invasion provide any necessary context for the condition and inform the probation
department’s task of determining which parties may be at risk for financial or
physical harm. Thus, the condition is not vague and provides sufficient guidance
as to what risks must be disclosed and to whom.
C. Delegation of Judicial Functions
Hull next argues Standard Condition Twelve improperly delegates judicial
functions to the probation department, in violation of Article III of the
Constitution. We apply a de novo standard of review to this challenge. United
States v. Ullmann, 788 F.3d 1260, 1264 (10th Cir. 2015).
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To decide whether a condition of supervised release improperly
delegates sentencing authority to a probation officer, we distinguish
between permissible delegations that merely task the probation
officer with performing ministerial acts or support services related to
the punishment imposed and impermissible delegations that allow the
officer to decide the nature or extent of the defendant’s punishment.
United States v. White, 782 F.3d 1118, 1141 (10th Cir. 2015) (quotation and
alterations omitted)).
Hull acknowledges “that probation officers have broad authority to advise
and supervise probationers.” United States v. Mike, 632 F.3d 686, 695 (10th Cir.
2011) (quotation omitted). He asserts, however, that Standard Condition Twelve
grants the probation department “unfettered discretion” to decide whether, as well
as how, the condition should be applied. But, as we concluded above, the district
court cabined the probation department’s discretion. Further, when the probation
department identifies a risk by applying the criteria set out by the district court, it
has no discretion to determine whether Hull must give the notice contemplated by
Standard Condition Twelve. At the sentencing hearing, the district court
specifically instructed the probation department that it must require Hull to give
notice if a risk is identified. R. at 228 (“[I]t’s important that [the probation
department] be able to assess those situations, and if one of them seems to
indicate a risk, that they would require notification.”); Ullmann, 788 F.3d at 1264
(“An oral pronouncement of sentence from the bench controls over written
language.” (alteration and quotation omitted)).
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Standard Condition Twelve is applicable only to those risks relating to
Hull’s history of bank robberies and home invasions. Because it is specific as to
the circumstances in which it applies, it does not permit the probation department
to decide the nature or extent of Hull’s punishment. Once a risk is identified, the
probation department must require Hull to comply with the notification
requirement. The only power left to the probation department is the ministerial
task of determining the steps Hull must take to satisfy his obligation to comply.
Accordingly, Standard Condition Twelve is not an unconstitutional delegation of
judicial authority.
D. Occupational Restriction
Hull also challenges Standard Condition Twelve as an unlawful
occupational restriction. He argues a district court may not require him to notify
an employer about his criminal history as a condition of supervised release unless
the court first makes the findings required by USSG § 5F1.5. We conclude
Standard Condition Twelve is not an occupational restriction.
An occupational restriction is “a condition of probation or supervised
release prohibiting the defendant from engaging in a specified occupation,
business, or profession, or limiting the terms on which the defendant may do so.”
USSG § 5F1.5(a). Occupational restrictions are not recommended by the
Guidelines but may be imposed as a condition of supervised release if the district
court first makes the findings detailed in USSG § 5F1.5(a). Standard Condition
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Twelve, on the other hand, is one of the many standard conditions of supervised
release “recommended” by the Sentencing Guidelines. USSG § 5D1.3(c). This
court has held that no supporting findings are required to impose a standard
condition of supervision. Muñoz, 812 F.3d at 823.
On its face, Standard Condition Twelve does not prohibit Hull “from
engaging in a specified occupation, business, or profession, or limit[] the terms on
which” he may do so. USSG § 5F1.5(a). Hull argues, however, that it is an
occupational restriction because he may be required to notify an employer about
his prior convictions. The authority on which he relies does not support this
proposition.
In United States v. Souser, 405 F.3d 1162 (10th Cir. 2005), a condition of
supervised release similar to Standard Condition Twelve required the defendant to
notify third parties of risks occasioned by her criminal record. Id. at 1163-64.
Informal local policy contained in the probation office’s internal manual
interpreted this condition to require the defendant to inform her employer of “any
prior criminal history that is relevant to the employment situation.” Id. at 1164.
The district court interpreted the condition to require the defendant to notify her
employer of her conviction. Id. at 1166. As so interpreted, this court held the
condition was an occupational restriction. Id. at 1165-66. Souser is not
applicable here because the district court did not impose Standard Condition
Twelve under the mistaken belief that it requires Hull to notify any and all
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employers of his convictions. As set out above, the court’s understanding of the
limited applicability of the condition is clear from the example it offered of the
limited circumstances under which Hull would be required to provide notice to an
employer (i.e., his employment by a cleaning service that cleans banks). United
States v. Mike, is similarly unpersuasive. Like the condition imposed in Souser,
the one imposed in Mike was struck down because it required the defendant to
notify all employers of his convictions. 632 F.3d at 698.
Standard Condition Twelve does not prohibit Hull from engaging in any
particular profession and it does not categorically require him to notify employers
of his convictions. Accordingly, it is not an occupational restriction and USSG
§ 5F1.5 is inapplicable.
IV. Conclusion
The sentence imposed by the district court is affirmed.
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