United States Court of Appeals For the First Circuit

No. 21-1388

UNITED STATES OF AMERICA,

Appellee,

v.

AKEEM CRUZ, a/k/a Vybe, a/k/a Mello,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Jon D. Levy, U.S. District Judge]

Nos. 21-1428, 21-1429

UNITED STATES OF AMERICA,

Appellee,

v.

TAYLOR LOVELY,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. Lance E. Walker, U.S. District Judge] No. 21-1720

UNITED STATES OF AMERICA,

Appellee,

v.

JEREMIAH MITCHELL, a/k/a Jazz,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Selya, and Howard, Circuit Judges.

Jamesa J. Drake and Drake Law LLC on brief for appellants Cruz and Lovely. Rory A. McNamara and Drake Law LLC son brief for appellant Mitchell. Darcie N. McElwee, United States Attorney, and Benjamin M. Block, Assistant United States Attorney, on brief for appellee.

September 28, 2022 LYNCH, Circuit Judge. In these consolidated appeals,

appellants challenge Standard Condition of Supervised Release

Number 12, arguing that the condition on its face violates the Due

Process Clause of the Fifth Amendment on vagueness grounds and

Article III of the U.S. Constitution on nondelegation grounds.1

Akeem Cruz, Taylor Lovely, and Jeremiah Mitchell

("appellants") respectively pleaded guilty, pursuant to written

plea agreements with the government, to (1) one count of conspiracy

to possess with intent to distribute cocaine base and more than

100 grams of heroin in violation of

(b)(1)(B),

846; (2) two counts of conspiracy to distribute and possess with

intent to distribute 50 grams or more of methamphetamine in

violation of

(a)(1), (b)(1)(A); and (3) one count

of conspiracy to distribute and possess with intent to distribute

a mixture or substance containing fentanyl in violation of

(a)(1), (b)(1)(C), 846. Appellants' cases below were

before three different district court judges. These separate

prosecutions were consolidated on appeal because they raise the

same appellate challenges.

The district court sentenced Cruz to 100 months'

imprisonment followed by four years' supervised release; Lovely to

1 Appellants Cruz and Lovely mistakenly argue that Standard Condition 12 violates not the Fifth Amendment, but the Fourteenth Amendment.

- 3 - 158 months' imprisonment followed by five years' supervised

release; and Mitchell to 60 months' imprisonment followed by three

months' supervised release. The district courts also imposed

conditions of supervised release on all appellants, including

Standard Condition 12. No appellant objected to the imposition of

Standard Condition 12 in the district court. For the first time

on appeal, appellants challenge Standard Condition 12 as

unconstitutionally vague and an unconstitutional delegation of

judicial authority.

We reject on the merits all of the constitutional

challenges made and affirm.

I.

The following facts, taken from the unobjected to

portions of the presentence reports ("PSR"), sentencing hearing

transcripts, and appellants' briefs, are not in dispute.

a. Akeem Cruz

Between 2015-2017, Akeem Cruz participated in a

conspiracy to distribute heroin and cocaine base in the Portland,

Maine area. Cruz, who always maintained an independent source of

supply, was part of the conspiracy "from inception." Cruz and his

co-conspirators worked independently but "shared trap houses for

distribution," "utilized the same primary person as the connection

to customers," and steered customers to one another when their

individual supply ran low. When Cruz was incarcerated from

- 4 - November 2015 to March 2016, his then girlfriend operated his drug

business for him. After Cruz was released from prison, he resumed

operation of his illegal drug business. Law enforcement conducted

controlled purchases from Cruz in 2017 and charged him with federal

crimes.

Cruz entered into a written plea agreement with the

government in August 2019. Cruz waived his right to appeal the

"guilty plea and any other aspect of [his] conviction" and "[a]

sentence of imprisonment that does not exceed 120 months." The

district court found that Cruz was responsible for a total

converted drug weight of over 490 kilograms. At sentencing, the

district court determined, without objection, Cruz's total offense

level to be 27 and his criminal history category to be IV,

resulting in a Guidelines sentencing range of 100 to 125 months'

imprisonment. The district court imposed, without objection, a

sentence of 100 months' imprisonment followed by four years'

supervised release, during which Cruz would be required to comply

with certain enumerated conditions, including Standard Condition

12.

Cruz, through counsel, did not object to Standard

Condition 12 in the PSR, in his pre-sentencing submissions to the

district court, or at his sentencing hearing. For the first time

on appeal, Cruz challenges the constitutionality of Standard

Condition 12.

- 5 - b. Taylor Lovely

Taylor Lovely participated in two conspiracies to

distribute methamphetamine in Maine.

The first conspiracy, in which Lovely conspired to

obtain methamphetamine from suppliers in the western United States

to sell throughout northern Maine, occurred between approximately

January 1, 2017, and about August 30, 2018. Lovely was a mid-

level participant in the conspiracy, who "sent and received

packages [of methamphetamine], secured additional addresses to

receive shipments, and distributed methamphetamines to lower-level

distributors." Approximately two kilograms of methamphetamine are

associated solely with Lovely's first conspiracy.

The second conspiracy, in which Lovely traveled to

Arizona and California to obtain methamphetamine and transport it

back to Maine, occurred between approximately July 2018 and May

19, 2019. Lovely assisted in breaking down larger amounts of

methamphetamine into smaller quantities for distribution and

obtained assets in his name as part of the second conspiracy. In

November 2018, Lovely purchased two vehicles with almost $30,000

cash as part of this conspiracy. One of these vehicles was used

by co-conspirators to travel to Mexico with a large amount of cash

in January 2019. Law enforcement officers searched the other

vehicle during a traffic stop in April 2019, and seized nearly

$15,000 in cash and a .22 caliber rifle. Though Lovely was not

- 6 - present at the traffic stop, he "expressed concern" to a co-

conspirator about the car's impoundment "because there was a

firearm contained in the vehicle." At sentencing, the district

court found that it was reasonably foreseeable by Lovely that his

co-conspirator was likely to use a firearm.

Lovely entered into a written plea agreement with the

government in December 2020. Lovely waived his right to appeal

his "guilty plea and any other aspect of [his] conviction" and a

"sentence of imprisonment . . . that does not exceed 188 months."

At sentencing, the district court determined Lovely's total

offense level to be 38 and his criminal history category to be II,

resulting in a Guidelines sentencing range of 262 to 327 months'

imprisonment. The district court imposed a sentence of 158 months'

imprisonment followed by five years' supervised release for each

offense, to be served concurrently. The court also imposed

conditions of supervised release, including Standard Condition 12.

Lovely, through counsel, did not object to Standard

Condition 12 in the PSR, in his pre-sentencing submissions to the

district court, or at his sentencing hearing. Lovely now

challenges the constitutionality of Standard Condition 12 for the

first time on appeal.

c. Jeremiah Mitchell

For approximately two years, Jeremiah Mitchell obtained

heroin and fentanyl from a Massachusetts supplier for distribution

- 7 - in Maine. Mitchell provided Patricia Oliver with heroin and

cocaine that Oliver then sold to the public. On October 4, 2018,

law enforcement stopped Oliver and found in her possession fentanyl

and nearly $5,000 in cash. That same day, Mitchell texted a third

involved individual, instructing her to dispose of drug

trafficking paraphernalia -- including "a coffee grinder with

fentanyl residue; bottles of inositol, a known cutting agent; a

digital scale with fentanyl residue; and other items such as

plastic baggies common in drug-dealing operations" -- in a

Scarborough, Maine, hotel room. Mitchell was arrested later that

day when he attempted to meet Oliver to collect the proceeds of

her sales.

Mitchell entered into a written plea agreement with the

government in March 2021. Mitchell waived his right to appeal his

"guilty plea and any other aspect of [his] conviction" and "[a]

sentence of imprisonment that does not exceed 33 months." The

district court attributed over 1,300 grams of fentanyl to Mitchell.

At sentencing, the district court determined, without objection,

Mitchell's total offense level to be 33 and his criminal history

category to be II, resulting in a Guidelines sentencing range of

151 to 188 months' imprisonment. The district court then applied

a three-level decrease with the government's consent, reducing the

Guidelines sentencing range to 108 to 135 months' imprisonment.

The district court imposed a sentence of 60 months' imprisonment

- 8 - followed by three years' supervised release. The court also

imposed conditions of supervised release, including Standard

Condition 12. Mitchell preserved his right to appeal.

Mitchell, through counsel, did not object to Standard

Condition 12 in the PSR, in his pre-sentencing submissions to the

district court, or at his sentencing hearing. Mitchell now

challenges the constitutionality of Standard Condition 12 for the

first time on appeal.

II.

If an objection to a condition of supervised release is

preserved, then our review is for abuse of discretion. See United

States v. Brown,

(1st Cir. 2000); see also United

States v. D'Amario,

(1st Cir. 2003) (per

curiam) ("[W]e ordinarily review a [preserved] challenge to the

imposition of conditions of supervised release for abuse of

discretion.").

Unpreserved claims challenging the imposition of

standard conditions of supervised release are reviewed on appeal

under the "demanding . . . plain error standard of review, which

requires [appellants] to show that (1) an error occurred (2) which

was clear or obvious and which not only (3) affected the

appellant's substantial rights but also (4) seriously impaired the

fairness, integrity, or public reputation of judicial

proceedings." United States v. Cueto-Núñez,

(1st

- 9 - Cir. 2017) (internal quotation marks omitted). "The appellant

must carry the devoir of persuasion as to each of those four

elements." United States v. Padilla,

(1st Cir.

2005). Appellants did not preserve their objections to Standard

Condition 12 that they attempt to argue on appeal. We hold that

there is no error at all and the constitutional challenges fail on

the merits. See, e.g., United States v. Antonakopoulos,

(1st Cir. 2005) (finding "no error, much less plain error").

III.

Appellants challenge Standard Condition 12 as

unconstitutionally vague and an unconstitutional delegation of

judicial authority to a probation officer.2 We find no error in

the district court's imposition of Standard Condition 12.3

a. Standard Condition 12

The text of Standard Condition 12 states as follows:

If the probation officer determines that the defendant poses a risk to another person

2 It is clear that the challenges appellants present are facial challenges to Standard Condition 12. 3 The government does not argue that Cruz's or Lovely's challenges to Standard Condition 12 are barred by the appeal waivers contained in their plea agreements, and we deem any such argument waived. See United States v. Zannino,

(1st Cir. 1990). We express no opinion as to whether either appeal waiver, if not waived, would extend to the challenged standard condition. Because appellants' claims are easily resolved under the plain error standard, we decline to decide whether appellants' failure to object to Standard Condition 12 below constitutes waiver or forfeiture. See United States v. Acevedo-Sueros,

(1st Cir. 2016); see also Cueto-Núñez,

.

- 10 - (including an organization), the probation officer may require the defendant to notify the person about the risk and the defendant shall comply with that instruction. The probation officer may contact the person and confirm that the defendant has notified the person about the risk.

U.S. Sent'g Guidelines Manual § 5D1.3(c)(12) (U.S. Sent'g Comm'n

2016).

The U.S. Sentencing Commission promulgated this language

in 2016 pursuant to its congressionally delegated authority to

"promulgate . . . general policy statements regarding . . . the

conditions of probation and supervised release."

(a)(2)(B). The text of Standard Condition 12 that appellants

challenge is taken nearly verbatim from the Sentencing

Commission's recommended language, changing only each instance of

"the defendant" to "you."4

A prior version of Standard Condition 12,5 which the

Sentencing Commission promulgated in 1987 shortly after its

4 The condition that appellants challenge reads: If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.

5 The prior 1987 version, not at issue here, provided: [A]s directed by the probation officer, the defendant shall notify third parties of risks

- 11 - creation, was repeatedly criticized for alleged constitutional

deficiencies. The Seventh Circuit criticized the 1987 provision

as "riddled with ambiguities." United States v. Thompson,

(7th Cir. 2015); see also United States v. Evans,

(9th Cir.) (criticizing the 1987 condition

as impermissibly vague because it left appellants "guessing" as to

whom they would need to notify and what they would need to tell

them), cert. denied,

(2018); United States v. Hill,

(7th Cir. 2016) (describing the 1987 condition

as "[h]opelessly vague"). In response to this criticism, the

Sentencing Commission amended Standard Condition 12 in 2016 to the

present version that appellants now challenge. See U.S. Sent'g

Guidelines Manual App. C Supp., Amend. 803 (Nov. 1, 2016). The

current Standard Condition 12 removes the phrase "personal history

or characteristics" and clarifies that the defendant must "comply

with [an] instruction" by the probation officer "to notify" an

identified person or organization of an identified risk, thereby

removing any guesswork as to when the defendant must act.

that may be occasioned by the defendant's criminal record or personal history or characteristics, and shall permit the probation officer to make such notifications and to confirm the defendant's compliance with such notification requirement. U.S. Sent'g Guidelines Manual § 5B1.4(a)(13) (U.S. Sent'g Comm'n 1987).

- 12 - Numerous circuit courts have since upheld the

constitutionality of Standard Condition 12 in its current form.

The Fifth Circuit upheld Standard Condition 12 against a delegation

challenge because the condition "only allows the probation officer

to direct when, where, and to whom the defendant must give notice"

-- "not unilaterally decide whether the defendant is subject to

the condition." United States v. Mejia-Banegas,

(5th Cir. 2022). The Eighth Circuit upheld Standard Condition 12

against a vagueness challenge because the condition states that

the defendant must notify a person of a particular risk only once

the probation officer has determined that the defendant poses a

risk to such person, and against a delegation challenge because

there was "nothing in the record to show the district court

disclaimed ultimate authority over [the defendant's] supervision."

United States v. Janis,

(8th Cir.), cert. denied,

(2021); see also United States v. Robertson,

(8th Cir.), cert. denied,

(2020).

The Ninth Circuit upheld Standard Condition 12 against a vagueness

challenge because the risks referenced in the condition are

"limited to the specific risks posed by the defendant's criminal

record," and the probation officer has "limited discretion."

United States v. Gibson,

(9th Cir. 2021)

(internal quotation marks omitted). The Tenth Circuit upheld

Standard Condition 12 against a vagueness challenge because the

- 13 - condition "clearly and specifically states that [the defendant]

must provide notice when required to do so by his probation

officer," and against a delegation challenge because "the district

court cabined the probation department's discretion." United

States v. Hull,

(10th Cir. 2018). The

Eleventh Circuit upheld Standard Condition 12 against a delegation

challenge because the condition does "not permit the probation

officer to unilaterally decide whether [the defendant] 'shall' do

something." United States v. Porter,

, 548 (11th

Cir. 2021) (per curiam) (citation omitted); see also United States

v. Nash,

(11th Cir. 2006) (upholding the pre-2016

version of Standard Condition 12).6

b. Appellants' Challenge to Standard Condition 12

Despite the Sentencing Commission's 2016 amendment of

Standard Condition 12 to address vagueness concerns and the Courts

of Appeals that have upheld the Condition's constitutionality,

appellants nonetheless argue that Standard Condition 12 is

unconstitutionally vague and an unconstitutional delegation of

judicial authority.

6 In as applied attacks considering the nature of the underlying criminal offense, some decisions have vacated and remanded for further consideration of Standard Condition 12. See United States v. Boles,

(2d Cir. 2019); United States v. Cabral,

(10th Cir. 2019).

- 14 - Before discussing appellants' constitutional

challenges, we outline the general law as to a district court's

authority to impose conditions of supervised release. There is no

challenge in this case that the district courts exceeded that

authority.

A district court may impose any condition of supervised

release that "it considers to be appropriate" as long as the

condition (1) is "reasonably related" to the nature and

circumstances of the offense and the history and characteristics

of the defendant, and to various objectives including deterring

criminal conduct, protecting the public from further crimes, and

providing needed training, medical care, or effective correctional

treatment,

(d)(1); (2) involves "no greater

deprivation of liberty than is reasonably necessary" to deter

criminal conduct and protect the public,

§ 3583(d)(2); and (3)

"is consistent with any pertinent policy statements issued by the

Sentencing Commission," id. § 3583(d)(3). See United States v.

Garrasteguy,

(1st Cir. 2009). Conditions of

supervised release "must . . . be supported by the record."

. "[T]his requirement can be satisfied without a written or

oral explanation of the reasons supporting the condition if [the

court of appeals] can infer the [district] court's reasoning by

comparing what was argued by the parties or contained in the pre-

sentence report with what the [district] court did."

- 15 - i. Vagueness

Appellants argue that Standard Condition 12 is

unconstitutionally vague because it "gives no guidance on what

type of risks; how much risk; how to determine those risks; which

third parties; or any other information that can allow the

condition to be applied uniformly" and thus "fails to adequately

apprise defendant[s] of what [they] must do to comply with the

law."

Some courts have held that a condition of supervised

release violates due process where it "either forbids or requires

the doing of an act in terms so vague that [people] of common

intelligence must necessarily guess at its meaning and differ as

to its application." United States v. Lee,

(3d

Cir. 2003) (citation omitted). Even were we to apply that

standard, Standard Condition 12 easily passes muster.

We hold, consonant with other circuits that have

considered this question, see Janis,

; Gibson,

; Hull,

, that Standard Condition 12

is not unconstitutionally vague. A "commonsense" and contextual

reading of Standard Condition 12 plainly provides that the

probation officer determines the nature of the risk appellants

pose and to whom appellants must give warning of said risk by

virtue of their criminal record. See United States v. Gallo,

(1st Cir. 1994) (explaining that conditions of probation

- 16 - must be read "in a commonsense way"). This directive is

unambiguous. Appellants need not guess as to the scope of Standard

Condition 12; they simply must follow the instructions of their

probation officer. See Janis,

; Gibson,

; Hull,

. Standard Condition 12's context

makes clear that the "risk" is defined as that posed by appellants'

criminal record. See § 5D1.3(b)(1)(A) (discretionary conditions

of supervised release, such as Standard Condition 12, may be

imposed where such conditions are reasonably related to "the nature

and circumstances of the offense and the history and

characteristics of the defendant"); see also Gibson

; Hull,

. The probation officer's discretion

is thus limited as to when Standard Condition 12 should be

triggered -- risks unrelated to a probationer's criminal record

are plainly outside the scope of the provision -- all while

promoting judicial efficiency because district court judges cannot

be expected to write a condition that addresses every possible

risk scenario.

ii. Delegation

Appellants challenge Standard Condition 12 as an

unconstitutional delegation of judicial authority to probation

officers, arguing that it "offers no intelligible standards on

which risks warrant notification, and to whom," leaving probation

- 17 - officers with "sole authority to determine whether the risk-

notification provision must be followed and when."

Article III of the U.S. Constitution vests

responsibility for resolving cases and controversies in the

federal courts. "[S]eparation of powers forbids courts from

delegating their Article III responsibilities." United States v.

Meléndez-Santana,

(1st Cir. 2003). Article III

courts may use "nonjudicial officers to support judicial

functions, as long as that judicial officer retains and exercises

ultimate responsibility." Bucci v. United States,

(1st Cir. 2011) (quoting United States v. Allen,

,

515–16 (1st Cir. 2002) (internal quotation marks omitted)). For

example, courts may delegate "administrative details" to a

probation officer. Id. at 36.

We hold, consonant with other circuits that have

considered this question, see Mejia-Banegas,

;

Janis,

; Hull,

; Porter, 842 F.

App'x at 548-49, that Standard Condition 12 does not

unconstitutionally delegate judicial authority to a probation

officer. When the probation department identifies a risk by

applying the criteria set forth by the district court, it has no

discretion as to whether appellants must give notice pursuant to

Standard Condition 12. See Hull,

. The probation

officer is tasked simply with directing appellants when, where,

- 18 - and to whom notice must be given. See Nash,

;

Janis,

. "That limited scope of authority neither

leaves to the probation officer the 'final say' on whether to

impose a condition of supervised release nor implicates a

significant deprivation of liberty." Mejia-Banegas,

.

IV.

Affirmed.

- 19 -