United States v. Johnny Magdaleno

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10390
Plaintiff-Appellee,
D.C. Nos.
v. 5:18-cr-00466-BLF-1
5:18-cr-00466-BLF
JOHNNY MAGDALENO, AKA
Soldier Boy,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Argued and Submitted April 12, 2022
San Francisco, California
Filed August 11, 2022
Before: Richard R. Clifton and Milan D. Smith, Jr., Circuit
Judges, and Christina Reiss, * District Judge.
Opinion by Judge Clifton
*
The Honorable Christina Reiss, United States District Judge for the
District of Vermont, sitting by designation.
2 UNITED STATES V. MAGDALENO
SUMMARY **
Criminal Law
The panel affirmed the district court’s imposition of a
special condition of supervised release set forth in the
parties’ plea agreement that prohibits Johnny Magdaleno, a
high-ranking member of the East Las Casitas Norteño street
gang, from associating with any member of the Norteño or
Nuestra Familia gangs, in a case in which Magdaleno, while
incarcerated, orchestrated and directly participated in violent
assaults against gang members who had violated the rules of
Nuestra Familia, a prison gang to which Norteño members
pledge loyalty.
On appeal, Magdaleno argued that this condition violates
his fundamental right to familial association because it does
not exclude his siblings who might be gang members.
The panel declined the Government’s invitation to
dismiss Magdaleno’s appeal based on the invited error
doctrine. The panel wrote that the record does not suggest
that Magdaleno either caused the alleged error intentionally
or abandoned a known right. The panel therefore treated the
right as forfeited, as opposed to waived, and reviewed the
district court’s decision to impose the gang condition for
plain error.
Magdaleno argued that the district court plainly erred by
failing to comply with the enhanced procedural requirements
that apply when a court imposes restrictions on a defendant’s
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. MAGDALENO 3
familial associations. The panel wrote that Magdaleno’s
relationship with a sibling or half sibling does not inherently
constitute an “intimate relationship” with a “life partner,”
child, or fiancée, and thus does not give rise to a “particularly
significant liberty interest” that would require the district
court to undertake additional procedural steps at sentencing.
The panel rejected Magdaleno’s contention that the
condition is substantively unreasonable. The panel
explained that given Magdaleno’s history of coordinating
and executing violent gang attacks, a prohibition on gang
association does not constitute an unreasonable deprivation
of liberty.
COUNSEL
Gail Ivens (argued), Monterey, California, for Defendant-
Appellant.
Claudia A. Quiroz (argued), Assistant United States
Attorney; Matthew M. Yelovich, Chief, Appellate Section,
Criminal Division; Stephanie M. Hinds, Acting United
States Attorney; United States Attorney’s Office, San
Francisco, California; for Plaintiff-Appellee.
4 UNITED STATES V. MAGDALENO
OPINION
CLIFTON, Circuit Judge:
While incarcerated at Monterey County Jail, Johnny
Magdaleno, a high-ranking member of the East Las Casitas
Norteño street gang, orchestrated and directly participated in
multiple violent assaults against gang members who had
violated the rules of Nuestra Familia, a prison gang to which
Norteño members pledge loyalty. He pleaded guilty to one
count of racketeering conspiracy and was sentenced to
360 months in prison. At sentencing, the district court
imposed a special condition of supervised release set forth in
the parties’ plea agreement that prohibited Magdaleno from
associating with any member of the Norteño or Nuestra
Familia gangs. On appeal, Magdaleno argues that this
condition violates his fundamental right to familial
association because it does not exclude his siblings who
might be gang members.
We first decline the Government’s invitation to dismiss
Magdaleno’s appeal based on the invited error doctrine. The
record in this case does not suggest that Magdaleno either
caused the alleged error or intentionally abandoned a known
right.
We uphold the challenged condition, however. The
district court did not commit procedural error in imposing
the condition, for it was not required to follow the enhanced
procedural steps that apply when a condition infringes upon
a “particularly significant liberty interest.” Nor is the
condition substantively unreasonable. Given Magdaleno’s
history of coordinating and executing violent gang attacks, a
prohibition on gang association does not constitute an
unreasonable deprivation of liberty. We affirm.
UNITED STATES V. MAGDALENO 5
I. Background
Magdaleno belongs to the East Las Casitas Norteño
street gang, a criminal organization whose members pledge
loyalty to and work closely with the Nuestra Familia prison
gang. Together, Nuestra Familia and Norteño members
operate a criminal enterprise engaged in drug trafficking,
murder, and other acts of violence. Inside prisons and local
jails, these gangs work together to promote discipline among
their members, maintain organizational structure, and punish
members who violate gang rules.
While incarcerated at Monterey County Jail, Magdaleno
served as a high-ranking member of a Norteño group called
La Casa. In this capacity, Magdaleno orchestrated or
directly participated in the so-called “removal” of seven
gang members deemed to have violated the rules of Nuestra
Familia. A Nuestra Familia “removal” followed a standard
formula: a “hitter” would stab the victim repeatedly, after
which two or more “bombers” would physically assault the
victim, thus giving the hitter time to clean himself, hide the
weapon, and avoid capture. In one such attack, Magdaleno,
serving as the hitter, stabbed a victim in the chest and back
over twenty times before the bombers swooped in and
allowed Magdaleno to evade detection. The goal of such
removals, Magdaleno acknowledged, was to “inflict
maximum physical damage to the victim.” In addition to
coordinating and executing these removals, Magdaleno
oversaw and actively participated in Nuestra Familia’s
narcotics operation within Monterey County Jail.
The federal Government charged Magdaleno in
September 2018 with racketeering conspiracy (Count One),
conspiracy to commit murder in aid of racketeering (Count
Two), and conspiracy to commit assault with a dangerous
weapon in aid of racketeering (Count Three). Magdaleno
6 UNITED STATES V. MAGDALENO
pleaded guilty to Count One pursuant to a written plea
agreement. The agreement, which Magdaleno signed,
provided that the district court should impose a special
condition of supervised release that prohibited him from
“associat[ing] or hav[ing] contact with any known gang or
gang member.” In the agreement, Magdaleno also waived
his right to appeal his conviction, “all orders of the Court,”
and “any aspect of [his] sentence,” reserving only the right
to claim that his sentence violated the plea agreement,
applicable law, or the Constitution. 1
At a change-of-plea hearing before sentencing,
Magdaleno affirmed under oath that he understood the terms
of his plea agreement, including the special condition
prohibiting association with known gang members. The
district court sentenced Magdaleno to 360 months of
imprisonment on Count One and imposed the following
special condition of supervised release (the “Gang
Condition”):
You must not knowingly participate in any
gang activity. You must not associate with
any member of the East Las Casitas Norteño
gang or the Nuestra Familia gang, and must
not wear the colors, clothing or insignia of
1
As discussed in Part II, below at 7–10, the Government argues that
Magdaleno’s appeal should be dismissed under the invited error
doctrine. It does not, however, argue that dismissal is required based on
Magdaleno’s appellate waiver, presumably because Magdaleno has
framed his challenge as a constitutional claim, which is allowed under
the waiver.
UNITED STATES V. MAGDALENO 7
East Las Casitas Norteño gang or the Nuestra
Familia gang. 2
In imposing the Gang Condition, the district court indicated
that it had considered “the circumstances and nature” of
Magdaleno’s crime, his admission that he was an active
member of the Norteño gang and Nuestra Familia
enterprise, and his admission that he was “the authority in
charge at the Monterey Jail” and directly participated in
multiple removals. Magdaleno did not object to the Gang
Condition at sentencing. This appeal followed.
On appeal, Magdaleno argues that the Gang Condition is
unconstitutionally overbroad because it fails to exclude his
siblings or half siblings who might belong to the Norteño or
Nuestra Familia gangs. He also argues that the district court
failed to comply with certain procedural requirements when
imposing the condition. The Government argues that we
should dismiss Magdaleno’s appeal under the invited error
doctrine or, in the alternative, affirm the Gang Condition
under plain error review.
II. Invited Error
The Government argues that we should dismiss this
appeal under the invited error doctrine, a position it
continued to press at oral argument. 3
“The doctrine of invited error prevents a defendant from
complaining of an error that was his own fault.” United
2
The written judgment conformed to the oral pronouncement in all
material respects.
3
The Government later attempted to withdraw this argument nearly
a week after oral argument in this case.
8 UNITED STATES V. MAGDALENO
States v. Myers, 804 F.3d 1246, 1254 (9th Cir. 2015)
(citation omitted). If a defendant has both (1) invited the
error and (2) relinquished a known right, then the alleged
error is considered “waived and therefore unreviewable.” Id.(citation omitted). Here, the Government has not established
that either requirement is met.
For purposes of the invited error doctrine, a defendant
invites error when he “induce[s] or cause[s] the error.”
United States v. Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en
banc). The paradigmatic example of inducing or causing
error arises when “the defendant himself proposes allegedly
flawed jury instructions[.]” Id. at 844 (gathering cases); see
also, e.g., United States v. Hui Hsiung, 778 F.3d 738, 747
(9th Cir. 2015) (explaining that such a scenario “falls
squarely within the ‘invited error’ doctrine”). But we have
also held that a defendant can invite error in other scenarios.
For example, in United States v. Reyes-Alvarado, 963 F.2d
1184 (9th Cir. 1992), we held that the defendant invited error
where his own attorney had elicited a statement on cross-
examination that he later argued should have been excluded.
See id. at 1186–87. We reached the same conclusion in
Johnson v. I.N.S., 971 F.2d 340 (9th Cir. 1992), where the
defendant’s attorney had offered into evidence the document
he then sought to challenge on appeal as inadmissible
hearsay. See id. at 343–44. And in Myers, we likewise held
that a defendant had invited error when his attorney
requested and participated in a settlement conference
overseen by a magistrate judge, only to argue later that the
judge’s participation violated the Supreme Court’s
prohibition on judicial involvement in plea discussions. See
804 F.3d at 1254–55. In each case, the defendant himself
introduced, or directly set in motion, the error of which he
complained.
UNITED STATES V. MAGDALENO 9
Here, however, there is no indication that Magdaleno
introduced the alleged error in the Gang Condition.
Although the Government repeatedly claims in its
Answering Brief that Magdaleno “proposed” the Gang
Condition, the only evidence it cites for this assertion is the
provision from Magdaleno’s plea agreement indicating that
the district court should impose the Gang Condition. While
this provision shows that Magdaleno agreed to the condition
by signing the plea agreement, it does not suggest that
Magdaleno himself proposed the condition or drafted the
language. Indeed, when we raised this issue at oral
argument, the Government conceded that Magdaleno “did
not propose” the Gang Condition. We have never applied
the invited error doctrine in a circumstance like this, and the
Government has not given any compelling reason for doing
so now.
Even if Magdaleno had caused the alleged error, the
Government has not established the second prong of the
invited error doctrine. In Perez, we clarified that the invited
error doctrine applies only to “rights deemed waived, . . .
that is, ‘known right[s]’ that have been ‘intentional[ly]
relinquish[ed] or abandon[ed].’” 116 F.3d at 842 (citation
omitted) (alterations in original). Waiver is to be
distinguished from forfeiture, which occurs when a
defendant “fail[s] to make a timely assertion of a right”
because he “is unaware of a right that is being violated.” Id.at 845–46. Thus, to establish the second prong of the invited
error doctrine, the Government must point to “evidence in
the record that the defendant was aware of, i.e., knew of, the
relinquished or abandoned right.” Id. at 845. In the context
of a case involving flawed jury instructions, for example,
there must be evidence that the defendant considered
submitting the correct instruction to the court, “but then, for
some tactical or other reason,” decided to “propose[] or
10 UNITED STATES V. MAGDALENO
accept[] a flawed instruction.” Id. In this case, application
of the doctrine would require evidence that Magdaleno knew
about his supposed right to sibling association and
considered proposing a modification to the Gang Condition
that would exclude his siblings, but then, “for some tactical
or other reason, rejected the idea.” See id. But the
Government has pointed to no such evidence, and we have
found none in the record.
We therefore “must treat the right as forfeited, as
opposed to waived.” Id. at 846. Accordingly, we review the
district court’s decision to impose the Gang Condition for
plain error under Federal Rule of Criminal Procedure 52(b).
Id.III. The Gang Condition
We undertake a two-part analysis when reviewing
conditions of supervised release. See United States v. Wolf
Child, 699 F.3d 1082, 1090–91 (9th Cir. 2012). First, we
“determine whether the district court committed procedural
error.” Id. at 1090. Second, we “review the substantive
reasonableness of the supervised release condition[],
‘accounting for the totality of the circumstances presented to
the district court.’” Id. (citation omitted). Where a
defendant fails to object to a condition of supervised release
at sentencing, as Magdaleno concedes was the case here, we
review that condition for plain error. United States v.
Johnson, 626 F.3d 1085, 1088–89 (9th Cir. 2010). We will
reverse under this standard only if there is an “(1) error,
(2) that was clear or obvious, (3) that affected substantial
rights, and (4) that seriously affected the fairness, integrity,
or public reputation of the judicial proceedings.” Id. at 1088(citation omitted).
UNITED STATES V. MAGDALENO 11
Magdaleno raises both procedural and substantive
challenges to the district court’s imposition of the Gang
Condition. With respect to procedure, he argues that the
district court failed to comply with the “enhanced procedural
requirement[s]” that apply when a court imposes restrictions
on a defendant’s familial associations. With respect to
substance, he argues that the Gang Condition is
“unconstitutionally overbroad because it does not exclude
[his] family members.”
A. Alleged Procedural Error
Ordinarily, a district court need not state at sentencing its
reasons for imposing each condition of supervised release,
so long as its reasoning is apparent from the record. United
States v. Collins, 684 F.3d 873, 890 (9th Cir. 2012) (citations
omitted). There is an exception, however, for conditions that
implicate a “particularly significant liberty interest.” United
States v. Stoterau, 524 F.3d 988, 1005 (9th Cir. 2008).
Where such an interest is at stake, the district court “must
follow additional procedures and make special findings.” Id.In particular, the court
must support its decision [to impose the
condition] on the record with record evidence
that the condition of supervised release
sought to be imposed is necessary to
accomplish one or more of the factors listed
in [18 U.S.C.] § 3583(d)(1) and involves no
greater deprivation of liberty than is
reasonably necessary.
Id. (first alteration in original) (citation omitted). In
addition, if a supervised release condition
12 UNITED STATES V. MAGDALENO
targets a defendant’s right to associate with
an intimate family member, the district court
must “undertake an individualized review”
on the record of the relationship between the
defendant and the family member at issue to
determine whether the restriction is necessary
to accomplish the goals of deterrence,
protection of the public, or rehabilitation.
Wolf Child, 699 F.3d at 1090 (citation omitted).
Magdaleno argues that because the Gang Condition
would forbid association with any siblings or half siblings
who are gang members, the district court was required to
follow the enhanced procedural requirements outlined
above, and that its failure to do so constitutes plain error.
This argument fails at step one of the plain error analysis.
There was no error. As we explain in Part III.B, below at
13–17, Magdaleno’s relationship with a sibling or half
sibling does not inherently constitute an “intimate
relationship” akin to a relationship with a “life partner,”
child, or fiancée. Cf. id. at 1091, 1094–95; United States v.
Napulou, 593 F.3d 1041, 1047 (9th Cir. 2010). Magdaleno
has not presented evidence to establish that the relationship
he has with any of his siblings reaches the same level.
Accordingly, those relationships do not give rise to a
“particularly significant liberty interest” that would require
the district court to undertake additional procedural steps at
sentencing. See Wolf Child, 699 F.3d at 1091. Because
Magdaleno’s procedural challenge fails at step one of plain
error review, we need not reach the remaining steps in this
analysis.
UNITED STATES V. MAGDALENO 13
B. Substantive Reasonableness
Magdaleno also challenges the substantive
reasonableness of the Gang Condition, arguing that it is
“unconstitutionally overbroad because it does not exclude
family members[,]” specifically his siblings or half siblings.
As with our review of procedural error, we review the
substantive reasonableness of a supervised release condition
not objected to below for plain error. See, e.g., United States
v. LaCoste, 821 F.3d 1187, 1190–92 (9th Cir. 2016). 4
“District judges enjoy broad discretion in fashioning the
conditions needed for successful supervision of a defendant,
and we owe substantial deference to the choices they make.”
Id. at 1190. To that end, “a district court may impose special
conditions of supervised release that are designed to prevent
4
Magdaleno states that “[w]hether a supervised release condition
violates the Constitution is reviewed de novo.” This principle does not
apply, however, when the defendant has failed to object to the condition.
See, e.g., Johnson, 626 F.3d at 1089–91 (reviewing an allegedly
unconstitutional condition of supervised release for plain error where the
defendant had failed to object to the condition in the proceedings below).
Although we held in United States v. Autery, 555 F.3d 864 (9th Cir.
2009), “that the substantive reasonableness of a sentence—whether
objected to or not at sentencing—is reviewed for abuse of discretion[,]”
that holding refers to the substantive reasonableness of a sentence’s
length (and, in particular, a district court’s application of the Sentencing
Guidelines). See id. at 871–78. Even after Autery, we have continued to
apply the plain error standard when reviewing the substantive
reasonableness of supervised release conditions not objected to at
sentencing. See, e.g., LaCoste, 821 F.3d at 1190–92; United States v.
Phillips, 704 F.3d 754, 767–68 (9th Cir. 2012); Johnson, 626 F.3d
at 1089–91; see also United States v. Blinkinsop, 606 F.3d 1110, 1116,
1118–19 (9th Cir. 2010) (citing Autery when reviewing the district
court’s application of the Sentencing Guidelines for abuse of discretion
but reviewing supervised release condition for plain error).
14 UNITED STATES V. MAGDALENO
a defendant’s reversion into a former crime-inducing
lifestyle, or bar affiliation with former associates.” Johnson,
626 F.3d at 1090. But even in light of district courts’ broad
discretion to impose conditions of supervised release,
“restrictions infringing upon fundamental rights are
‘reviewed carefully[.]’” United States v. Soltero, 510 F.3d
858, 866 (9th Cir. 2007) (citation omitted). As relevant here,
[a] restriction on a defendant’s right to free
association is invalid unless 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).
Johnson, 626 F.3d at 1090 (citation and internal quotation
marks omitted). Magdaleno does not dispute that the Gang
Condition meets the first and third criteria; his sole
argument, rather, is that the condition “involves an
unnecessary deprivation of liberty” because it fails to
exclude his siblings from its reach.
Magdaleno’s argument rests on the premise, articulated
in Wolf Child, that defendants have a “fundamental right to
familial association.” 699 F.3d at 1092. In relying on Wolf
Child, though, Magdaleno overlooks significant factual
distinctions between that case and ours. The condition of
supervised release in Wolf Child prohibited the defendant
from associating with his own children and fiancée. Id. at
1091, 1094. We concluded that these “intimate” familial
relationships implicate a particularly significant liberty
UNITED STATES V. MAGDALENO 15
interest, see id. at 1091–95, just as we had held earlier in
Napulou that one’s relationship with a “life partner”
implicates such an interest, see 593 F.3d at 1047. In view of
the heightened scrutiny that applies to a condition infringing
upon those interests, we held that the condition was
substantively unreasonable, particularly as there was no
record evidence to suggest that the defendant (who had
pleaded guilty to attempted sexual abuse) posed a threat to
his own minor children or fiancée. Wolf Child, 699 F.3d
at 1096–97.
Magdaleno’s reliance on Wolf Child is therefore
misplaced. Wolf Child does not create a “particularly
significant liberty interest” in all familial relationships. Our
conclusion and analysis in Wolf Child are necessarily limited
to the kind of intimate familial relationships implicated in
that case. Although we do not rule out the possibility that a
sibling relationship could, under certain circumstances, give
rise to a particularly significant liberty interest, Magdaleno
offers no evidence to suggest that any of his sibling
relationships is comparable, in its level of support and
intimacy, to a relationship with one’s child, “life partner,” or
fiancée. Furthermore, Magdaleno’s scheduled release date
is more than two decades away. His familial circumstances
could change significantly in that time. Thus, while
Magdaleno can move to modify the Gang Condition closer
to his release date if the circumstances warrant, it would be
inappropriate for us to do so now when he has cited no
evidence to show the existence of an intimate familial
relationship to begin with.
Magdaleno also invokes our decision in Johnson, noting
that the supervised release condition in that case excluded
family members from its prohibition on association with
known gang members. See 626 F.3d at 1090. That may be
16 UNITED STATES V. MAGDALENO
so, but our analysis and conclusion in Johnson did not even
address that aspect of the condition; we were instead focused
on whether two other provisions of the condition survived
constitutional scrutiny. See id. at 1090–91. We certainly did
not suggest, let alone hold, that such an exception is
required.
More fundamentally, Magdaleno erroneously assumes
that any infringement on a defendant’s right to familial
association is automatically invalid. But we explicitly
rejected such a rule in Wolf Child. See 699 F.3d at 1099.
Our holding in that case, we explained, did not “imply a per
se rule that a supervised release condition may not infringe
on a defendant’s fundamental right to familial association.”
Id. Rather, “[i]f the record before the district court
demonstrates the need for such infringement[,] . . . such a
condition may be appropriate.” Id. Here, because
Magdaleno’s sibling relationships did not give rise to a
particularly significant liberty interest, the district court did
not have the high burden of undertaking an individualized
review to determine whether the condition was necessary to
the goals of deterrence, protection of the public, or defendant
rehabilitation. See Johnson, 626 F.3d at 1090. If, as he
suggests, Magdaleno’s siblings are fellow gang members,
there could be good reason to forbid his association with
them so as to prevent his “reversion into a former crime-
inducing lifestyle[.]” Id. As discussed, Magdaleno was not
a bit player in the Nuestra Familia and Norteño criminal
enterprise. Rather, he played a substantial role in carrying
out the organizations’ violent objectives at Monterey County
Jail. Under these circumstances, a prohibition on gang
association—even one that includes Magdaleno’s gang-
member siblings—could be well justified.
UNITED STATES V. MAGDALENO 17
For these reasons, the Gang Condition does not involve
a greater deprivation of liberty than is reasonably necessary
to achieve the goals of deterrence, protection of the public,
and/or defendant rehabilitation. See id. Thus, the condition
is substantively reasonable, and the district court did not err
in imposing it. As with Magdaleno’s procedural challenge,
we need not reach the remaining prongs of the plain error
analysis.
IV. Conclusion
Because Magdaleno neither caused the alleged error in
the Gang Condition nor intentionally relinquished a known
right, we decline to dismiss his appeal under the invited error
doctrine. We conclude, however, that the district court did
not commit procedural or substantive error in imposing the
Gang Condition.
AFFIRMED.