United States v. Salvatore Caccavallo

FILED
FEB 14 2013
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-35209
Plaintiff - Appellee, D.C. Nos. 9:11-cv-00035-DWM
9:08-cr-00067-DWM
v.
SALVATORE RICHARD MEMORANDUM *
CACCAVALLO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted February 7, 2013 **
Seattle, Washington
Before: FISHER, GOULD, and PAEZ, Circuit Judges.
Salvatore Caccavallo appeals the district court’s denial of his 28 U.S.C.
§ 2255 motion. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
On December 22, 2011, we granted Caccavallo a certificate of appealability
on three issues: “(1) whether the district court erred by prohibiting appellant from
possessing or using medical marijuana as a special condition of supervised release;
(2) whether the district court erred by imposing as a special condition of supervised
release the requirement that appellant register as a sex offender; and (3) whether
counsel [for Caccavallo] rendered ineffective assistance by failing to challenge the
special conditions of supervised release at issue in claims (1) and (2).” United
States v. Caccavallo, No. 11-35209 (9th Cir. Dec. 22, 2011) (order granting
certificate of appealability).
The certificate of appealability slightly mischaracterized the special
conditions of supervised release. The district court did not require that Caccavallo
register as a sex offender. It instead required only that Caccavallo “comply with all
applicable state and federal sexual offender registration requirements.” The district
court has the discretion to impose as a condition of supervised release that a
defendant comply with mandatory legal duties. United States v. W.P.L, 641 F.3d
1036, 1037 (9th Cir. 2011) (citing 18 U.S.C. § 3553(a)). We reject Caccavallo’s
challenge to the condition relating to federal sex offender registration.
The district court did not err in imposing as a special condition of supervised
release that Caccavallo “shall not purchase, possess, use, distribute or administer
2
marijuana, or obtain or possess a medical marijuana card.” The federal Controlled
Substances Act prohibits possession of marijuana outside of government-approved
research projects, United States v. Oakland Cannabis Buyers’ Coop., 532 U.S. 483,
489–90 (2001), and Congress prohibited all defendants from unlawfully possessing
controlled substances during their terms of supervision, United States v. Lafley, 656
F.3d 936, 941 (9th Cir. 2011) (citing 18 U.S.C. § 3583(d)). The condition that
Caccavallo not obtain or possess a medical marijuana card helps him avoid
returning to his admitted drug abuse. The condition “involve[s] no greater
deprivation of liberty than is reasonably necessary for the purposes of supervised
release.” United States v. Jeremiah, 493 F.3d 1042, 1046 (9th Cir. 2007) (quoting
United States v. Sales, 476 F.3d 732, 735 (9th Cir. 2007)).
Because the district court was entitled to impose both of these special
conditions of supervised release, Caccavallo was not prejudiced by his counsel’s
failure to object to these special conditions of supervised release, and his counsel’s
legal performance was not deficient. Wood v. Ryan, 693 F.3d 1104, 1118 (9th Cir.
2012) (quoting Strickland v. Washington, 466 U.S. 668, 687–88 (1984)).
AFFIRMED.
3