United States v. Ryan Clarke

FILED
NOT FOR PUBLICATION APR 19 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50231
Plaintiff - Appellee, D.C. No. 5:08-cr-00098-VAP-1
v.
MEMORANDUM*
RYAN MARSHAL CLARKE,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted April 15, 2011**
Pasadena, California
Before: KOZINSKI, Chief Judge, D.W. NELSON and BYBEE, Circuit
Judges.
The district court expressly determined that “[t]he defendant’s criminal
history places him in criminal history category 5.” In doing so, the court
necessarily rejected Clarke’s requests for downward departures and therefore
*
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).
page 2
complied with Federal Rule of Criminal Procedure 32. See United States v.
Rogers, 119 F.3d 1377, 1384–85 (9th Cir. 1997) (finding that a district court
complied with Rule 32 by implicitly resolving an objection to the PSR).
Clarke’s challenges to two conditions of supervised release similarly fail.
First, the condition requiring Clarke to “notify the probation officer within 72
hours of being arrested or questioned by a law enforcement officer” is not
unconstitutionally vague because “men of common intelligence” needn’t “guess at
its meaning and differ as to its application.” United States v. Hugs, 384 F.3d 762,
768 (9th Cir. 2004). Second, the condition requiring Clarke to “permit a probation
officer to visit him . . . at any time at home or elsewhere” is not unreasonable under
the Fourth Amendment, see Samson v. California, 547 U.S. 843, 857 (2006), nor is
it constitutionally overbroad or vague, or statutorily a “greater deprivation of
liberty than is reasonably necessary,” see United States v. Soltero, 510 F.3d 858,
865–67 (9th Cir. 2007).
In his plea agreement, Clarke waived his “right to appeal any sentence
imposed by the Court, and the manner in which the sentence is determined” so
long as he received a within or below Guidelines sentence. Because Clarke’s 96-
month sentence falls within the relevant Guidelines range, we don’t consider his
page 3
remaining arguments. See United States v. Jeronimo, 398 F.3d 1149, 1154 (9th
Cir. 2005).
AFFIRMED.