United States v. Paul Fischer

FILED
NOT FOR PUBLICATION MAR 09 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50205
Plaintiff - Appellee, D.C. No. 2:09-cr-00166-PA
v.
MEMORANDUM *
PAUL FISCHER,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted March 6, 2012 **
Before: B. FLETCHER, REINHARDT, and TASHIMA, Circuit Judges.
Paul Fischer appeals from the supervised release conditions imposed
following his guilty-plea conviction for maintaining a drug-involved premises, in
violation of 21 U.S.C. § 856(a)(1). We have jurisdiction under 28 U.S.C. § 1291,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and we affirm in part, vacate in part, and remand for resentencing.
Fischer contends that the district court abused its discretion by imposing the
mandatory condition of drug testing, and by imposing a number of special
conditions of supervised release. Because Fischer did not object at sentencing, we
review his contentions for plain error. See United States v. Vega, 545 F.3d 743,
747 (9th Cir. 2008).
The district court did not err in imposing a drug testing condition during
Fischer’s supervised release because drug testing is a required condition of
supervised release. See 18 U.S.C. § 3583(d). Further, the district court did not err
when it imposed a condition requiring Fischer to perform 20 hours of community
service. See Vega, 545 F.3d at 748-49.
The district court plainly erred, however, by imposing supervised release
conditions relating to alcohol use and participation in a substance abuse treatment
programs, because there was no evidence at the time of sentencing that Fischer had
an alcohol or substance abuse problem. See United States v. Betts, 511 F.3d 872,
877-79 (9th Cir. 2007). As a result, we vacate that portion of the sentence and
remand.
AFFIRMED in part; VACATED and REMANDED in part.
2 10-50205