United States v. Rudy Wahchumwah

FILED
NOT FOR PUBLICATION
AUG 25 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30296
Plaintiff-Appellee, D.C. No.
2:11-cr-02090-SMJ-1
v.
RUDY LEE WAHCHUMWAH,
ORDER
Defendant-Appellant.
Before: FARRIS, MURPHY,* and NGUYEN, Circuit Judges.
The petition for panel rehearing is granted. The Memorandum filed on
July 27, 2017 is withdrawn and a revised Memorandum is filed concurrently with
this order.
The panel unanimously agrees that no further petitions for rehearing in this
matter will be entertained.
*
The Honorable Michael R. Murphy, United States Circuit Judge for
the U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
FILED
NOT FOR PUBLICATION
AUG 25 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-30296
Plaintiff - Appellee, D.C. No. 2:11-cr-02090-SMJ-1
v. MEMORANDUM*
RUDY LEE WAHCHUMWAH,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington,
Salvador Mendoza, Junior, District Judge, Presiding
Submitted July 14, 2017 **
Seattle, Washington
Before: FARRIS, MURPHY, *** and NGUYEN, Circuit Judges.
In 2012, Appellant Rudy Lee Wahchumwah was convicted of failing
to register as a sex offender under the Sex Offender Registration and
*
This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. Appl P. 34(a)(2).
***
The Honorable Michael R. Murphy, Senior Circuit Judge for the
U.S. Court of Appeals, Tenth Circuit, sitting by designation.
Notification Act (“SORNA”), 18 U.S.C. § 2250. His sentence included
supervised release, one term of which prohibited him from unsupervised
contact with children under the age of 18 (the “no-contact condition”).
After Wahchumwah’s release from incarceration, he violated the no-contact
condition and the district court revoked his term of supervised release. The
court sentenced him to thirteen months’ imprisonment, twenty-three
months’ supervised release, and reimposed the no-contact condition.
1. Wahchumwah challenges the manner in which the no-contact
condition was imposed when he was sentenced for the SORNA conviction
in 2012, arguing the condition violated his due process rights by infringing
on his fundamental right of association with his own children and
grandchildren because the sentencing court imposed it without complying
with certain procedural protections. This court, however, has held that
“[a]n appeal challenging a probation revocation proceeding is not the
proper avenue through which to attack the validity of the original
sentence.” United States v. Gerace, 997 F.2d 1293, 1295 (9th Cir. 1993);
see also United States v. Castro-Verdugo, 750 F.3d 1065, 1068-69 (9th Cir.
2014); United States v. Simmons, 812 F.2d 561, 563 (9th Cir. 1987).
Wahchumwah’s due process claim is really a collateral attack on his 2012
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sentence. He must bring that attack in a 28 U.S.C. § 2255 motion. Castro-
Verdugo, 750 F.3d at 1071 (“Allowing a collateral attack on the underlying
sentence of probation in an appeal from a probation revocation proceeding
would . . . thwart Congress’ [one-year] statute of limitations for correcting
a sentence.”). Accordingly, we do not reach the merits of his argument.
2. Wahchumwah next argues the revocation of his supervised release
should be reversed because no rational trier of fact could have found he
knowingly violated the no-contact condition. When a defendant makes a
sufficiency-of-the-evidence challenge to a supervised release revocation,
this court must determine whether “viewing the evidence in the light most
favorable to the government, any rational trier of fact could have found the
essential elements of a violation by a preponderance of the evidence.”
United States v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir. 2007) (quotation
omitted). Having reviewed the record, we conclude Wahchumwah cannot
show the district court erred. The testimony of Wahchumwah’s probation
officer that Wahchumwah appeared to know the children were in his
kitchen and knew why they were there, is sufficient under the applicable
standard to prove Wahchumwah knowingly violated the no-contact
condition.
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3. Wahchumwah’s challenges to his current sentence are also
unavailing. A district court must make special evidentiary findings on the
record before imposing a condition of supervised release that restricts a
parent’s “particularly significant liberty interest” in contact with his own
minor children. United States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir.
2012) (quotation omitted). In his opening brief, Wahchumwah argues the
district court procedurally erred by not holding an evidentiary hearing on
the issue. In his petition for rehearing, he argues the district court erred by
failing to make the required findings.
Wahchumwah does not explain why he was unable to adequately
present evidence relevant to his position on the continued necessity of the
no-contact condition and he has not identified any contested issues of fact.
To the contrary, he admits that he “proffered undisputed evidence” at the
revocation hearing and shows he made a legal argument based on that
evidence. See United States v. Sarno, 73 F.3d 1470, 1502-03 (9th Cir.
1995) (“A district court may permissibly deny a hearing where a defendant
is allowed to rebut the recommendations and allegations of the presentence
report either orally or through the submission of written affidavits or
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briefs.”). Accordingly, Wachumwah cannot show that the district court
erred by failing to hold an evidentiary hearing.
There was likewise no procedural error committed with respect to the
district court’s findings. The court reimposed the no-contact condition
based on the uncontested fact that Wahchumwah sexually assaulted and
impregnated his own daughter. Additionally, Wahchumwah continued to
have contact with minor children without the required oversight by an
approved chaperone. In an addendum to the judgment, the district court
specifically found that (1) Wahchumwah’s prior conduct involved the
sexual abuse of his minor daughter, (2) that abusive conduct demonstrates a
risk to children, particularly children who are family members, and (3)
Wahchumwah has repeatedly failed to comply with previously imposed
restrictions on his contact with minors. These findings are sufficient to
satisfy the Wolf Child procedural standard.
4. Special conditions of supervised release “are permissible if they
are reasonably related to goals of deterrence, protection of the public, or
rehabilitation of the offender, taking into account the offender’s history and
personal characteristics, and involve no greater deprivation of liberty than
is reasonably necessary for the purposes of supervised release.” United
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States v. Goddard, 537 F.3d 1087, 1089 (9th Cir. 2008). As the district
court noted, Wahchumwah (1) was convicted of sexually abusing his own
child, (2) has repeatedly failed to register as a sex offender and (3) has
repeatedly violated the no-contact condition. He asserts, however, that the
district court committed plain error by failing to specifically address his
request that the court credit him for a twenty-four-month sentence he
served for a conviction that was later vacated. See United States v.
Wahchumwah, 472 F. App’x 623 (9th Cir. 2012) (unpublished disposition).
Applying the plain error standard to this question, we discern no error.
Before imposing the term of incarceration, the district court discussed
the relevant 18 U.S.C. § 3553(a) factors, including the deterrence factor
and Wahchumwah’s “history of not following the rules.” Because the
court’s reason for imposing the sentence is clear from the record, a detailed
explanation of why it rejected Wahchumwah’s over-incarceration argument
was not necessary. As the Supreme Court stated in Rita v. United States, in
conceptually simple cases where the context and the record make the
district court’s reasoning clear, the law does not require the court to
explicitly reject a defendant’s argument. 551 U.S. 338, 359 (2007). Thus,
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there is no merit to Wahchumwah’s assertion the district court committed
plain error when it failed to specifically address his sentencing argument.
Affirmed.
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