United States v. Deandre Watson

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-10385
Plaintiff-Appellee, D.C. No.
v.  CR-07-00336-
DEANDRE WATSON, WHA-2
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Northern District of California
William H. Alsup, District Judge, Presiding
Argued and Submitted
July 13, 2009—San Francisco, California
Filed September 23, 2009
Before: Barry G. Silverman, Richard R. Clifton, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Clifton
13739
13742 UNITED STATES v. WATSON
COUNSEL
Joseph P. Russoniello, United States Attorney, Barbara J. Val-
liere, William Frentzen, and Erika R. Frick (argued), Assistant
United States Attorneys, San Francisco, California, for the
plaintiff-appellee.
Scott A. Sugarman, Sugarman & Cannon, San Francisco, Cal-
ifornia, for the defendant-appellant.
OPINION
CLIFTON, Circuit Judge:
Deandre Watson, who pled guilty to carjacking pursuant to
a plea agreement containing a waiver of the right to appeal,
challenges a condition of his super-vised release barring him
from entering San Francisco without the prior approval of his
probation officer. He argues that the district court did not pro-
vide the necessary notice before issuing this condition and
that the condition itself violates his “constitutional rights to
travel and move, to freedom of association, to intimate associ-
ation with his family and related rights.”
A waiver of the right to appeal does not bar a defendant
from challenging an illegal sentence. We conclude, however,
that the disputed supervised release condition directing Wat-
son to stay out of San Francisco during the term of his super-
UNITED STATES v. WATSON 13743
vised release unless he obtains permission from his probation
officer is not unlawful. It is reasonably tied to the court’s
stated aims of rehabilitation and deterrence and is no more
restrictive than reasonably necessary to serve those purposes.
Nor do we find here any of the other circumstances that cause
a waiver of appeal to be ineffective. The language of Wat-
son’s plea agreement waiver encompasses this appeal and the
waiver was knowingly and voluntarily made given the cir-
cumstances surrounding the agreement. We accordingly dis-
miss the appeal.
I. Background
On the night of March 14, 2007, Watson and co-defendant
Maurice Bibbs jumped into a rental car parked on a San Fran-
cisco street. Unfortunately, they were not the ones who had
rented the car. The woman for whom the car had been rented
noticed the men entering her car and approached them. Bibbs
removed a handgun from his jacket and brandished it at the
victim, who was seven months pregnant at the time. She fled
and called the police. The responding officers reported that
when they arrived at the scene the victim was sobbing uncon-
trollably, appearing to have been traumatized by the incident.
Watson and Bibbs drove off, but they were apprehended in
the rental car about an hour later. A firearm was recovered
from the back seat.
Watson and Bibbs were indicted for carjacking in violation
of 18 U.S.C. § 2119 (Count One); and for using, carrying, and
possessing a firearm in committing the crime of violence of
carjacking in violation of 18 U.S.C. § 924(c)(1)(A) (Count
Two). Bibbs was also indicted for tampering with a witness
in violation of 18 U.S.C. § 1512(b)(1) (Count Three).
Watson entered into a written plea agreement in which he
pled guilty to Count One of the indictment. Watson agreed
“that a reasonable and appropriate disposition of this case,
under the Sentencing Guidelines and 18 U.S.C. § 3553(a), is
13744 UNITED STATES v. WATSON
as follows: 72 months imprisonment, 3 years of supervised
release (with conditions to be fixed by the Court), no fine as
I am unable to pay a fine, $100 special assessment and restitu-
tion to be determined by the Court.” Watson further agreed
“to give up my right to appeal my conviction(s), the judg-
ment, and orders of the Court” and “to waive any right I may
have to appeal any aspect of my sentence, including any
orders relating to forfeiture and/or restitution.” Watson also
waived his right to bring any collateral attack on his convic-
tion or sentence aside from a constitutional claim of ineffec-
tive assistance of counsel. Watson (and his attorney)
confirmed that he had adequate opportunity to discuss the
agreement with counsel and decided to enter the plea know-
ingly and voluntarily.
The district court conducted the change of plea hearing on
February 7, 2008, going over the sentence set forth in the plea
agreement. In particular, the court reminded Watson that he
must “report and live under certain strict conditions” while on
supervised release. It stated that it could not determine the
appropriate sentence, however, until it examined Watson’s
Presentence Report (PSR). The court reviewed the plea agree-
ment’s appellate waiver provision with Watson, reenforcing
that he would be “giving up [his] right to take an appeal.”
Watson confirmed that he understood all of these conse-
quences and the court accepted his guilty plea.
The PSR noted Watson’s “relative youth” and observed
that it appeared he “did not plan the offense ahead of time, but
made a rash, spur of the moment decision to go along with
[Bibbs] and commit the instant offense.” Watson’s PSR
included a statement from the case agent involved in the car-
jacking investigation that both Watson and Bibbs were mem-
bers of the San Francisco “Eddy Rock” gang. The PSR also
disclosed that Watson, who was only 19 at the time of sen-
tencing, had already compiled a sorry record. He had been
convicted in San Francisco as a juvenile for committing fel-
ony grand theft in September 2003 and misdemeanor burglary
UNITED STATES v. WATSON 13745
in July 2004. As a result, Watson was placed in a residential
program from September 2004 until August 2005, when he
left the facility without permission. Watson was soon placed
in a different program, but was removed and transferred to yet
another institution two months later after a court determined
that he had committed misdemeanor battery against his room-
mate. He was released in September 2006 and returned to his
mother’s home in San Francisco. Less than three months later
he was arrested in San Francisco for carrying a concealed
weapon, carrying a loaded firearm, and obstructing/resisting
arrest.1 Watson continued to live in his mother’s home until
his arrest for the current offense just six months after he was
last released from custody.
The PSR was no more encouraging about the support Wat-
son received from his family or others around him, conclud-
ing that Watson “appears to have received minimal guidance
from his parents or other adults in his life. It is noteworthy
that despite witnessing the murder of his best friend at age 15,
[Watson] has not been offered or received any mental health
treatment, despite his ongoing involvement in the juvenile
probation system.” Watson’s mother “indicated that [Watson]
can come to live with her after [his] release, but that she is
moving to Marin2 in the next couple of weeks.” However,
even though he had lived most of his life with his mother, the
PSR reported that Watson “stated that his mother did not
show much interest in his well being,” and “that he has had
little contact with his mother since his arrest, and she has only
visited him one time while in custody.”
During Watson’s sentencing hearing on August 18, 2008,
the court first accepted the plea agreement then imposed the
1
The case stemming from these weapons charges was dismissed on May
21, 2008.
2
Marin is the county immediately north of San Francisco, across the
Golden Gate Bridge.
13746 UNITED STATES v. WATSON
prison sentence. The following exchange took place as the
court announced the supervised release condition in question:
THE COURT: I am going to recommend — make it
a condition that he not return to the city and county
of San Francisco while on supervised release. He can
live in this district, but not in San Francisco, because
I see all — he’ll be back in trouble again in three
days. As soon as he — so he has to get a job and live
in Oakland or live — if he’s found again in San
Francisco, he’s going to go back into custody —
unless it’s with the permission of the probation offi-
cer.
MR. SUGARMAN [Watson’s attorney]: Just so I
understand and so he does [sic], you’re saying he
cannot going [sic] to anyplace in San Francisco?
THE COURT: Without prior permission on —
while on supervised release. And the reason for that
is a very good reason. I’ve seen this time and time
again. Somebody comes out of prison. They go back
to San Francisco. Within a week, they’re back with
the old guys and the old gang, and they are back in
trouble. They got a gun. And then eventually, they
get caught.
Now, living in Oakland may not be much better,
but at least they make new friends. Maybe some of
those are law-abiding friends.
And so I want to try this. I want you to be thinking
about who he could live with over there that’s a law-
abiding relative — or it could be San Jose. I don’t
care where it is, as long as it’s not the city and
county of San Francisco.
MR. SUGARMAN: I suggest, your Honor,
respectfully, I think that order is overbroad.
UNITED STATES v. WATSON 13747
It is one thing to say he should not associate with
a list of people. It’s one thing to even say, “You
should not appear in certain neighborhoods.” This
incident occurred in one neighborhood he lived in.
Second, to say that he can’t go anywhere in San
Francisco —
THE COURT: Why does he have to come to San
Francisco?
MR. SUGARMAN: His mother is hospitalized, as
she was a few weeks ago, for, apparently, a stroke.
And he wants to go to San Francisco General to visit
her.
THE COURT: That would be okay. The probation
officer — call him up. “Can I go see my mom? She’s
in the hospital.”
Answer: Yes.
MR. SUGARMAN: He certainly has friends that
are not criminally inclined. While some of them cer-
tainly were, I think that limits his travel; limits his
right to petition for the redress of grievances; limits
his right to go to City Hall — whatever he wishes to
do. I believe it’s broader than —
THE COURT: Take an appeal if you — maybe it’s
waived. I don’t know, but that’s — I’m going to
require that, because I think it’s for his own good.
I promise you in the long run, he’s going to be
thanking me for this.
Mr. Watson, . . . You know, I do see people in
your very position that come back in here four or
13748 UNITED STATES v. WATSON
five years later, and they got an honest job. They’re
paying tax. They haven’t committed any more
crimes. They’re off of drugs. It can happen. It can
happen.
That’s what I want to see happen for you.
What I know will happen if you get back into San
Francisco, you’ll be out soon. You’ll still be a young
guy. You’ll go back to those old guys in Eddy Rock
Gang or whatever it is. And pretty soon, the cops
will pick you up with a gun. And there will be all
these excuses. “I needed it for protection.” It won’t
matter. You’ll go back to jail. You’ve got to break
that cycle.
That’s why I’m — and I believe this thing about
you can’t — you can’t come to San Francisco with-
out probation prior approval. I’m going to put that in
there.
Now, you got a great lawyer. Maybe he’ll find a
way to get an appeal out of this and declare that
unconstitutional. And, you know, that will be great;
but until then, this is going to be the deal, because
I think it’s for your own good.
MR. SUGARMAN: My objection, your Honor, is:
it does unconstitutionally limit his right to travel, to
associate, to expression. Therefore, I think it’s
broader than it needs to be for supervised-release
purpose.
THE COURT: I disagree completely. So there it is.
The judge then imposed the sentence, referencing the geo-
graphical condition saying “this is the one we talked about.
While on supervised release, he shall not enter the city and
UNITED STATES v. WATSON 13749
county of San Francisco without the prior approval of the pro-
bation officer.” The condition is listed as a “special condi-
tion[ ] of supervision” in the written judgment. Watson timely
appealed.
II. Discussion
Watson only appeals the special condition of his supervised
release requiring that he “not come to the City and County of
San Francisco, without the prior approval of the probation
officer.” He maintains the condition is invalid because (1) he
did not receive notice of the condition prior to the announce-
ment of his sentence, and (2) the condition constitutes an
abuse of discretion under the sentencing statute and violates
his constitutional rights. The government responds that Wat-
son was not entitled to advance notice of the supervised
release condition and the restriction is legally justified since
it is reasonably related and tailored to rehabilitation and deter-
rence goals. The government argues that since none of the
other exceptions to appellate waiver apply, Watson waived
his right to bring this appeal.
We review the district court’s order of a supervised release
condition for abuse of discretion. United States v. Williams,
356 F.3d 1045, 1052 (9th Cir. 2004). “In applying this stan-
dard of review, we give considerable deference to a district
court’s determination of the appropriate supervised release
conditions, recognizing that a district court has at its disposal
all of the evidence, its own impressions of a defendant, and
wide latitude.” United States v. Stoterau, 524 F.3d 988, 1002
(9th Cir. 2008) (internal quotation marks omitted). Whether a
supervised release condition illegally exceeds the permissible
statutory penalty or violates the Constitution is reviewed de
novo. See United States v. Gementera, 379 F.3d 596, 600 n.5
(9th Cir. 2004). Whether Watson has waived his right to
appeal is also reviewed de novo. See United States v. Bibler,
495 F.3d 621, 623 (9th Cir. 2007).
13750 UNITED STATES v. WATSON
A. Validity of the Supervised Release Condition
“On appeal, we first consider whether the district court
committed significant procedural error, then we consider the
substantive reasonableness of the sentence.” United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). We there-
fore begin with the objection to lack of notice and then con-
sider the supervised release condition itself.
1. Notice of the Condition
The district court announced the restraint on entering San
Francisco for the first time in the course of pronouncing Wat-
son’s sentence. While Watson protested the actual condition
at sentencing, he did not object on the grounds of insufficient
notice, so we review that claim for plain error. See, e.g.,
United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th
Cir. 2008) (“Because [defendant] failed to object at sentenc-
ing to the adequacy of notice his claim is reviewed for plain
error.”). “Before an appellate court can correct an error not
raised at trial, there must be (1) error, (2) that is plain, and (3)
that affects substantial rights. If all three conditions are met,
an appellate court may then exercise its discretion to notice a
forfeited error, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial proceed-
ings.” United States v. Jordan, 256 F.3d 922, 926 (9th Cir.
2001) (internal quotation marks omitted).
The parties have engaged in a lively debate about whether
the restriction imposed by the district court falls within the
conditions contemplated by the sentencing guidelines, thereby
putting Watson on constructive notice of it. See, e.g., United
States v. Wise, 391 F.3d 1027, 1033 (9th Cir. 2004) (“Where
a condition of supervised release is not on the list of manda-
tory or discretionary conditions in the sentencing guidelines,
notice is required before it is imposed, so that counsel and the
defendant will have the opportunity to address personally its
appropriateness.”); United States v. T.M., 330 F.3d 1235,
UNITED STATES v. WATSON 13751
1242 (9th Cir. 2003) (explaining that a defendant “is consid-
ered to have advance notice of any condition that is contem-
plated by the sentencing guidelines”); 18 U.S.C.
§ 3563(b)(13) (permitting the court to order a defendant to
“reside in a specified place or area, or refrain from residing
in a specified place or area”); U.S. Sentencing Guidelines
Manual § 5D1.3(c)(8) (2008) (recommending as a “standard”
supervised release condition that “the defendant shall not fre-
quent places where controlled substances are illegally sold,
used, distributed, or administered, or other places specified by
the court”).
[1] We conclude for a simpler reason that even if more
explicit notice was required, the lack of notice in this case did
not rise to the level of plain error. Watson’s attorney reacted
quickly to challenge the scope of the condition at issue. He
effectively argued before the district court what there was to
argue, presenting the same substantive objections subse-
quently raised on appeal. It is clear to us that the district court
understood Watson’s position, but the judge responded
clearly: “I disagree completely. So there it is.” It would not
have made any difference if Watson and his attorney had been
given an opportunity to return to the court to discuss the sub-
ject a few days later, or had been given more specific notice
a few days in advance. The error, if there was any, did not
affect Watson’s substantial rights. Accord United States v.
Sullivan, 451 F.3d 884, 896 (D.C. Cir. 2006) (rejecting a
belated challenge to supervised release conditions “because
there is no showing here that the judge would have imposed
less onerous conditions even if [defendant] had been afforded
‘advance’ notice”); United States v. McKissic, 428 F.3d 719,
726 (7th Cir. 2005) (affirming a condition of supervised
release under plain error review despite the absence of due
notice reasoning the district court could modify the condition
at any time).
2. Substance of the Condition
[2] The Sentencing Reform Act, as set forth in 18 U.S.C.
§ 3583(d), allows the district court to order a non-mandatory
13752 UNITED STATES v. WATSON
condition of supervised release, like the one featured here, if
that condition:
(1) is reasonably related to the 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 cross-referenced portion of 18 U.S.C. § 3553(a) instructs
the court to consider:
(1) the nature and circumstances of the offense and
the history and characteristics of the defendant;
(2) the need for the sentence imposed —
...
(B) to afford adequate deterrence to crimi-
nal conduct;
(C) to protect the public from further
crimes of the defendant; and
(D) to provide the defendant with needed
educational or vocational training, medical
care, or other correctional treatment in the
most effective manner[.]
“In sum, conditions are permissible if they are reasonably
related to the goals of deterrence, protection of the public, or
UNITED STATES v. WATSON 13753
rehabilitation of the offender, taking into account the offend-
er’s history and personal characteristics, and involve no
greater deprivation of liberty than is reasonably necessary for
the purposes of supervised release.” United States v. God-
dard, 537 F.3d 1087, 1089 (9th Cir. 2008). The government
bears the burden of showing that these statutory standards are
met. Stoterau, 524 F.3d at 1002.
“While a district court’s discretion to set conditions of
supervised release is broad even when those conditions affect
fundamental rights, restrictions infringing upon fundamental
rights are reviewed carefully.” United States v. Soltero, 510
F.3d 858, 866 (9th Cir. 2007) (internal quotation marks and
citations omitted). “A restriction on a defendant’s [constitu-
tional right] is nonetheless valid if it: (1) is reasonably related
to the goals of deterrence, protection of the public, and/or
defendant rehabilitation; (2) involves no greater deprivation
of liberty than is reasonably necessary to achieve these goals;
and (3) is consistent with any pertinent policy statements
issued by the Sentencing Commission pursuant to 28 U.S.C.
§ 994(a).” Id. (internal quotation marks omitted); see also
United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988).
A condition does not have to relate to the offense of convic-
tion so long as it serves the statutorily-identified goals. See
United States v. Rearden, 349 F.3d 608, 619 (9th Cir. 2003).
[3] As a general rule, sentencing judges need not articulate
their reasons for imposing a condition of supervised release
provided that whether the court abused its discretion can be
gleaned from the record. United States v. Betts, 511 F.3d 872,
876 (9th Cir. 2007). “However, to impose a condition that
implicates a significant liberty interest, the district court must
support its decision on the record with evidence justifying the
condition.” United States v. Daniels, 541 F.3d 915, 924 (9th
Cir. 2008).
The breadth of the geographical limitation here gives us
some pause and requires a careful examination of the justify-
13754 UNITED STATES v. WATSON
ing factors before sustaining it. The district court could have
been both more expansive and more precise in articulating its
reasons for imposing such a broad condition. Nevertheless, it
is clear that the district court was persuaded that the only way
to prevent Watson from returning to a life of further miscon-
duct was to force him to make a new life somewhere else. The
record outlined above supports that conclusion, most notably
Watson’s history of repeated misconduct, his association with
the “Eddy Rock” gang in San Francisco, and the poor support
he has received from his family and surrounding home envi-
ronment. Separating a convicted felon from negative influ-
ences in his prior life is reasonably related to the permissible
goals of deterrence and rehabilitation and is a common pur-
pose of supervised release. See, e.g., United States v. Ross,
476 F.3d 719, 722 (9th Cir. 2007) (“Special conditions may
seek to prevent reversion into a former crime-inducing life-
style by barring contact with old haunts and associates, even
though the activities may be legal.” (internal quotation marks
omitted)).
[4] We have repeatedly upheld residency and travel condi-
tions aimed at keeping a convicted defendant away from cir-
cumstances that might lead him to offend again. See, e.g.,
Goddard, 537 F.3d at 1092 (affirming requirement that a con-
victed child pornography consumer get approval from his pro-
bation officer for any residence because it assists in
monitoring proximity to minors); United States v. Bee, 162
F.3d 1232, 1235-36 (9th Cir. 1998) (ordering convicted child
molester not to loiter in locations primarily used by children
held to be proper exercise of court’s broad discretion).
The harder question is whether the restriction is broader
than is reasonably necessary. Watson argues that it is and
therefore violates 18 U.S.C. § 3583(d). We conclude other-
wise.
District courts are given some discretion in fashioning con-
ditions of supervised release in part because of our uncer-
UNITED STATES v. WATSON 13755
tainty about how rehabilitation is accomplished. See, e.g.,
Gementera, 379 F.3d at 603. For years, courts have imposed
conditions barring defendants from having contact with cer-
tain identified persons, with known gang members, with per-
sons involved with drugs, and so forth. The phenomenon of
recidivism fueled by offenders falling back into old patterns
with their old trouble-making friends is well known. As the
experienced district judge observed: “I’ve seen this time and
time again. Somebody comes out of prison. They go back to
San Francisco. Within a week, they’re back with the old guys
and the old gang, and they are back in trouble. They got a
gun. And then, eventually, they get caught.” There is logic to
the district court’s view that the disputed condition might be
more effective in forcing Watson to avoid contact with bad
influences than a less extensive one.
[5] Excluding Watson from the City of San Francisco,
unless he obtains the permission of his probation officer, will
not impose an overwhelming burden on him. Watson points
to our recent decision in United States v. Riley, No. 08-50009,
___ F.3d ___, 2009 WL 2461896, at *2-*3 (9th Cir. Aug. 13,
2009) (striking prohibition on defendant’s use of a computer
to access any material relating to minors remarking it imposed
“a blanket ban on [his] use of a computer, not use subject to
approval by his probation officer”), arguing that the limitation
here is similarly broader than is reasonably necessary. But the
limitation overturned in Riley prevented that defendant, who
was previously employed as a technical engineer, from using
a computer to access a wide range of material, including some
which might be essential to his employment. Id. Watson has
not identified any depravation that would have a similar
impact on him. He has listed many innocent activities that he
could engage in within the boundaries of the city: “sleeping
in his own home, taking a City-sponsored summer job, visit-
ing his cousins, shopping, attending a concert, seeking gov-
ernment assistance or visiting a park.” But he can do almost
all of these things elsewhere, too. The only connections
important to Watson and unique to San Francisco that Watson
13756 UNITED STATES v. WATSON
identified are his long-time residence at his mother’s home
and his relationships with his family in the area. But the dis-
trict court had been informed by the PSR both that Watson’s
mother was moving from San Francisco to Marin, and that his
relationship with his family, and with his mother in particular,
was not necessarily a positive thing.
Nor did Watson “suggest any alternative, more limited,
exclusion boundary to aid the district court in the exercise of
its discretion.” United States v. Garrasteguy, 559 F.3d 34, 44
(1st Cir. 2009). In Riley, we noted that there were other more
sharply focused conditions that could be expected to accom-
plish the goal of the overbroad restriction. 2009 WL 2461896,
at *3. It is not clear what narrower condition would work for
Watson. The point of the district court’s broad exclusion was
to get Watson out of the environment that had not served him
well to date and to make him try to start fresh. Letting him go
back to the territory harboring the same bad influences as
before is not likely to accomplish that goal.
[6] Furthermore, the restriction placed on entering San
Francisco is not absolute. That Watson may obtain permission
from his probation officer to visit the city helps to mitigate the
severity of the limitation. See Goddard, 537 F.3d at 1092(noting residency restriction allowed probation officer to
monitor inappropriate proximity to minors); Rearden, 349
F.3d at 620-21 (determining condition prohibiting convicted
child pornography supplier from possessing or using a com-
puter with internet access was not overly restrictive “because
it is not absolute; rather, it allows for approval of appropriate
online access by the Probation Office”). If the probation offi-
cer denies his requests, Watson may seek relief from the dis-
trict court under 18 U.S.C. § 3583(e)(2). See United States v.
Miller, 205 F.3d 1098, 1100 (9th Cir. 2000).
Our decision is consistent with those of other circuits that
have endorsed analogous territorial conditions of supervised
release. For instance, the Third Circuit held that a special con-
UNITED STATES v. WATSON 13757
dition of supervised release preventing a convicted drug
dealer from entering the two counties where her mother and
children lived without her probation officer’s permission
involved liberty infringements “no greater than are necessary
to promote her rehabilitation by keeping her away from nega-
tive, if not wholly disastrous, influences.” United States v.
Sicher, 239 F.3d 289, 292 (3d Cir. 2000). Similarly, the Elev-
enth Circuit affirmed a condition of supervised release requir-
ing a convicted drug dealer, who was especially popular with
the high school crowd, to “stay out of Fulton County, Georgia
for the first two years of his probation unless he received the
permission of his probation officer.” United States v. Cothran,
855 F.2d 749, 750, 752-53 (11th Cir. 1988); see also United
States v. Alexander, 509 F.3d 253, 256-58 (6th Cir. 2007)
(approving a condition forcing the defendant to live in a city
hundreds of miles away since he violated the “more limited
restriction” barring him, absent permission from his probation
officer, from the town where he committed several alcohol-
related offenses).
Watson relies heavily on the Sixth Circuit’s opinion in
Johnson v. City of Cincinnati, 310 F.3d 484 (6th Cir. 2002).
We view that decision as entirely distinguishable. Johnson
dealt with a city ordinance excluding individuals from “drug
exclusion” zones if they were arrested or taken into custody
for certain drug offenses in one of the zones. Id. at 487-88.
Applying strict scrutiny, Johnson struck the statute down on
numerous constitutional grounds, including for violating the
right to intrastate travel. Id. at 503-04. However, the Johnson
Court explicitly contrasted the ordinance with the constitu-
tionally valid Bail Reform Act, commenting that the ordi-
nance “(1) automatically applies to persons arrested or
convicted without any individualized consideration, let alone
consideration by a neutral arbiter, and (2) does not require any
particularized finding that the arrested or convicted individual
is likely to repeat his or her drug crime.” Id. at 503. It went
on to conclude “due process . . . demands some individualized
consideration before an individual’s right to localized travel
13758 UNITED STATES v. WATSON
can be restricted.” Id. at 504. Watson’s supervised release
condition was imposed with individualized consideration.
Moreover, post-Johnson the Sixth Circuit upheld a more
restrictive geographical limitation than the one Watson faces
using the framework for evaluating supervised release condi-
tions. See Alexander, 509 F.3d at 256-58.
[7] In sum, we conclude that the challenged condition is
reasonably related to the goals of rehabilitation and deterrence
and is no broader than legitimately necessary to serve those
purposes. See Bee, 162 F.3d at 1236 (“[E]ven very broad con-
ditions are reasonable if they are intended to promote the pro-
bationer’s rehabilitation and to protect the public.”).
B. Validity of the Waiver of Appeal
The government argues that in his plea agreement Watson
waived the right to appeal any aspect of his supervised release
conditions, warranting dismissal of this appeal. Watson con-
tends that the waiver provision does not cover the issue raised
here and that several exceptions to appeal waivers apply
regardless.
1. Coverage of the Appeal Waiver
[8] “A defendant’s waiver of his appellate rights is enforce-
able if the language of the waiver encompasses his right to
appeal on the grounds raised, and if the waiver was know-
ingly and voluntarily made.” United States v. Joyce, 357 F.3d
921, 922 (9th Cir. 2004). Plea agreements are interpreted
using contract principles with any ambiguity construed in the
defendant’s favor. Id. at 923. “The scope of a knowing and
voluntary waiver is demonstrated by the express language of
the plea agreement.” United States v. Leniear, 574 F.3d 668,
672 (9th Cir. 2009) (internal quotation marks omitted). “This
court looks to the circumstances surrounding the signing and
entry of the plea agreement to determine whether the defen-
UNITED STATES v. WATSON 13759
dant agreed to its terms knowingly and voluntarily.” United
States v. Baramdyka, 95 F.3d 840, 843 (9th Cir. 1996).
In his plea agreement, Watson agreed “to give up my right
to appeal my conviction(s), the judgment, and orders of the
Court” and “to waive any right I may have to appeal any
aspect of my sentence.” (emphases added). Watson promised
not to “file any collateral attack on my conviction(s) or sen-
tence” except for an ineffective assistance of counsel claim.
Watson further “agree[d] that a reasonable and appropriate
disposition of this case, under the Sentencing Guidelines and
18 U.S.C. § 3553(a),” would include “3 years of supervised
release (with conditions to be fixed by the Court).” (emphasis
added).
[9] In Joyce, our court addressed a similar plea agreement
that recited “I . . . knowingly and voluntarily agree to waive
my right under 18 U.S.C. § 3742 to appeal any aspect of the
sentence imposed in this case, if the court imposes a sentence
within the parameters of this agreement.” 357 F.3d at 923. We
determined that the reference to “any aspect of the sentence”
unambiguously encompassed supervised release terms. Id. at
923-24; see also United States v. Goodson, 544 F.3d 529, 538
(3d Cir. 2008) (“By waiving his right to take a direct appeal
of his sentence, [defendant] waived his right to challenge the
conditions of his supervised release, which were by definition
a part of his sentence.”). Watson’s agreement to forego the
right to appeal “any aspect of my sentence” similarly covers
supervised release conditions. See Joyce, 357 F.3d at 923-24;
see also 18 U.S.C. § 3583(a) (empowering the court to
impose supervised release terms “as a part of the sentence”).
While Watson’s plea agreement does not specifically mention
18 U.S.C. § 3742, “the only source of any right to appeal the
sentence,” Joyce, 357 F.3d at 923, he did promise to waive
“any right” to appeal “any aspect” of his sentence, which nec-
essarily encompasses appeals brought under 18 U.S.C.
§ 3742.
13760 UNITED STATES v. WATSON
[10] The record shows that Watson waived his appellate
rights knowingly and voluntarily. In addition to the written
terms of the plea agreement itself, the district court “reviewed
the charges and each of the terms of the plea agreement and
asked [Watson] questions to ensure that he understood the
contents of his plea agreement.” Baramdyka, 95 F.3d at 844.
In particular, the court explained that supervised release
means “After you come out of prison, you don’t just get to go
free. Again, you’ve got to report and live under certain strict
conditions. That’s supervised release. Okay?” to which Wat-
son responded, “Yes.” With respect to the appellate waiver,
the court reiterated that “if I sentence you in accordance with
this agreement or — doesn’t really matter, as long as I wind
up sentencing you and you don’t withdraw from this agree-
ment, you’re giving up your right to take an appeal.” Watson
signaled that he understood this. The court summed up the
waiver again, explaining “So, basically, if I go along with
your agreement here and sentence you ultimately to the six
years, so forth, you are stuck with it, you have no appeals, and
just be sitting in prison for the next six years less time
served.” then asked, “Do you understand?” (emphases added).
Watson answered, “Yes.” “This court has held such proce-
dures sufficient to find a knowing and voluntary waiver.”
Baramdyka, 95 F.3d at 844; see also United States v. Johnson,
67 F.3d 200, 203 (9th Cir. 1995) (“The fact that [defendant]
did not foresee the specific issue that he now seeks to appeal
does not place that issue outside the scope of his waiver.”).
2. Exceptions to the Appeal Waiver
[11] Watson’s right to appeal the condition of his super-
vised release is not preserved by any exception to appellate
waiver. “An appeal waiver will not apply if: 1) a defendant’s
guilty plea failed to comply with Fed. R. Crim. P. 11; 2) the
sentencing judge informs a defendant that she retains the right
to appeal; 3) the sentence does not comport with the terms of
the plea agreement; or 4) the sentence violates the law.”
Bibler, 495 F.3d at 624. We concluded above that the sen-
UNITED STATES v. WATSON 13761
tence was not unlawful. The inapplicability of each of the
other exceptions is addressed in turn.
i. Adequacy of the Plea Colloquy
Federal Rule of Criminal Procedure 11(b)(1)(N) mandates
that “[b]efore the court accepts a plea of guilty . . . the court
must address the defendant personally in open court . . . .
[and] must inform the defendant of, and determine that the
defendant understands . . . the terms of any plea-agreement
provision waiving the right to appeal or to collaterally attack
the sentence.” Since Watson did not object to the adequacy of
the plea colloquy before the district court, we review for plain
error. United States v. Ross, 511 F.3d 1233, 1235 (9th Cir.
2008); see United States v. Arellano-Gallegos, 387 F.3d 794,
796 (9th Cir. 2004).
[12] We have held that a district court did not plainly err
in allowing the prosecutor to merely summarize the plea
agreement in open court and then affirming that the summary
comported with the defendant’s understanding of the agree-
ment. United States v. Ma, 290 F.3d 1002, 1005 (9th Cir.
2002). Ma relied in part on the defendant’s prior acknowledg-
ment that she read and understood the plea agreement. Id.Given the diligent colloquy undertaken here and Watson’s
written assurances that he adequately reviewed the terms of
the plea agreement, we see no plain error under Rule 11. See
id.; cf. Arellano-Gallegos, 387 F.3d at 796-97 (setting aside
the appellate waiver because there was a “wholesale omis-
sion” in the record of any reference to the waiver).
ii. Comments by the Judge
“[W]here a judge advises a defendant, without qualifica-
tion, that he or she has a right to appeal, the defendant will be
deemed to have such a right even though it was waived in the
plea bargain.” United States v. Jeronimo, 398 F.3d 1149, 1153
n.2 (9th Cir. 2005) (emphasis added). For instance, in United
13762 UNITED STATES v. WATSON
States v. Buchanan, the defendant’s appellate waiver was
deemed unenforceable when the “district court twice stated
that [he] had a right to appeal his sentence.” 59 F.3d 914, 917-
18 (9th Cir. 1995).
After Watson’s attorney objected to the breadth of the terri-
torial supervised release restriction, the district court replied
“Take an appeal if you — maybe it’s waived. I don’t know,
but that’s — I’m going to require that, because I think it’s for
his own good.” Following further elaboration as to why the
condition was necessary the court mentioned, “Now, you got
a great lawyer. Maybe he’ll find a way to get an appeal out
of this and declare that unconstitutional. And, you know, that
will be great; but until then, this is going to be the deal,
because I think it’s for your own good.”
[13] We confronted a similar scenario in United States v.
Aguilar-Muniz, 156 F.3d 974 (9th Cir. 1998), and determined
the district court’s admonition that “if you believe the waiver
is unenforceable, you can present that theory to the appellate
court” did not affect the appeal waiver in the plea agreement.
Id. at 977. Likewise, a judge’s comment that “It’s up to the
Ninth Circuit to decide whether under the circumstances
[defendant has] lost his right of appeal” did not disturb the
appellate waiver in United States v. Schuman, 127 F.3d 815,
817 (9th Cir. 1997). The district court’s ambivalent comments
to Watson did not invalidate his waiver.
iii. Scope of the Plea Agreement
[14] Federal Rule of Criminal Procedure 11(c)(1)(C) pro-
vides that a plea agreement specifying “that a specific sen-
tence or sentencing range is the appropriate disposition of the
case . . . binds the court once the court accepts the plea agree-
ment[ ].” Watson’s plea agreement expressly states “I agree
that a reasonable and appropriate disposition of this case”
includes “3 years of supervised release (with conditions to be
fixed by the Court).” Watson’s argument that the geographi-
UNITED STATES v. WATSON 13763
cal supervised release condition “increased his penalty and
was not part of the plea agreement” is without merit. See
Jeronimo, 398 F.3d at 1153 (“[W]e will generally enforce the
plain language of a plea agreement if it is clear and unambig-
uous on its face.”).
III. Conclusion
[15] The condition of supervised release providing that
Watson not enter the City and County of San Francisco with-
out the approval of his probation officer did not make Wat-
son’s sentence illegal. In light of Watson’s waiver of his right
to appeal, we dismiss this appeal. See United States v. Jacobo
Castillo, 496 F.3d 947, 954 (9th Cir. 2007) (en banc); United
States v. Lopez-Armenta, 400 F.3d 1173, 1177 (9th Cir.
2005).
DISMISSED.