United States v. Soltero
Concurring in Part
concurring in part and dissenting in part:
I concur in all of the majority Opinion save that concerning the treatment condition (Section II.B), which, in my view, constitutes an impermissible delegation to the probation office. As I read 18 U.S.C. § 3672, only courts are permitted to decide whether, and to what extent, a defendant is required to pay for drug treatment costs.
Although we considered a nearly identical supervised release condition in United States v. Dupas, 419 F.3d 916 (9th Cir. 2005), we did so under the plain error standard of review because, unlike Soltero, Dupas failed to make a timely objection to imposition of the condition. Dupas thus left open the question whether imposing this condition constituted legal error. See id. at 924 (concluding that if it was error to impose the condition, that error was not plain). We are now asked to answer the question left open in Dupas: May a district court — consistent with Article Ill’s prohibition against delegating sentencing decisions to probation offices, see United States v. Stephens, 424 F.3d 876, 880-81 (9th Cir. 2005) — allow the probation office to decide whether a defendant will be required to pay all or part of the costs of treating his or her substance dependency?
As a general rule, although a sentencing court must determine “whether a defendant must abide by a condition, and how ... a defendant will be subjected to the condition,” the court may “delegate to the probation officer the details of where and when the condition will be satisfied.” Stephens, 424 F.3d at 880. Under our Constitution, the power to punish is exclusively judicial, see Ex parte United States, 242 U.S. 27, 41-42, 37 S.Ct. 72, 61 L.Ed. 129 (1916), and thus the important limitation on a district court’s discretion is that it may not delegate to the probation office the job of “deciding] the nature or extent of the punishment imposed upon a probationer,” United States v. Pruden, 398 F.3d 241, 250 (3d Cir. 2005).
In United States v. Warden, 291 F.3d 363 (5th Cir. 2002), the Fifth Circuit considered a remarkably similar (though not identical) supervised release condition, which stated: “The defendant will incur the costs associated with [several counseling and treatment] programs, based on ability to pay as determined by the probation officer.” Id. at 364. The court in Warden upheld the condition, explaining that, per the condition’s plain language, “the probation officer[was] given only the responsibility to make a determination as to[the defendant’s] ability to pay, a fact-finding determination commonly made by probation officers in other contexts.” Id. at 366 (emphasis added). The Fifth Circuit thus implicitly drew a distinction be
The distinction drawn by the Fifth Circuit makes good sense. As a practical matter, probation offices are already charged with making ability to pay determinations in other contexts,
I also agree that the condition upheld in Warden comports with the Article III requirement that the court, not the probation office, “impose the [defendant’s] punishment,” Ex parte United States, 242 U.S. at 41-42, 37 S.Ct. 72, as well as the 18 U.S.C. § 3672 requirement that the “court[, not the probation office,] ... direct the payment of [treatment costs],” if any. The Warden court made it clear that part of the defendant’s punishment was to pay for all of his own rehabilitative treatment costs — a requirement the defendant was ordered to fulfill unless the probation office later determined he was financially unable to do so. The Warden court could have directed the defendant to pay none of his treatment costs, or to pay only the first $250 of those costs, depending on the circumstances of the particular case. While the court left to the probation office the administrative detail of calculating the defendant’s ability to pay, the court itself decided whether the defendant’s punishment should include payment of some, all, or none of his rehabilitative costs, as Article III and § 3672 required it to do.
If the condition imposed upon Soltero were identical to that imposed in Warden, I would have no trouble upholding it. Unfortunately, where the Warden condition explicitly directed the defendant to pay the full costs of his treatment and delegated only the ability to pay determination to the probation office, the condition here goes a step further and delegates to the probation office responsibility for determining not only the defendant’s ability to pay for court-ordered treatment, but also whether the defendant should be required to pay for some, all, or none of the treatment in the first instance. In essence, the condition here delegates the entire sentencing decision — not just the ministerial “ability to pay” computation — to a non-judicial officer.
While, in practice, this may be only a semantic distinction — as it is likely a probation office faced with the condition in
. See, e.g., 18 U.S.C. § 3664 (requiring probation office to include, in every PSR it prepares for crimes described in 18 U.S.C. § 3663A(c), "information sufficient for the court to exercise its discretion in fashioning a restitution order,” including "information relating to the economic circumstances of each defendant” — i.e., its calculation of the defendant’s ability to pay); United States v. Rearden, 349 F.3d 608, (9th Cir. 2003) (discussing probation office's role in ascertaining a defendant's ability to pay a fine).
Opinion of the Court
PER CURIAM Opinion; Partial Concurrence and Partial Dissent by Judge HAWKINS.
Dean Harlon Soltero (“Soltero”) appeals the sentence imposed following his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He argues that the district court erred by failing to verify that he had read his presentence report (“PSR”) and had discussed it with his attorney, as well as by imposing three particular conditions of supervised release. We affirm in part, and vacate and remand in part.
I.
Soltero
After ruling on these objections, the court sentenced Soltero to 72 months imprisonment, followed by three years of supervised release. During his term of supervised release, the court ordered Soltero to (among other things): (1) “As directed by the Probation Officer, ... pay all or part of the costs of treating [his] drug dependency and/or alcohol dependency”; (2) use only his “true legal name”; and (3) refrain from “associating with any known member of any criminal street gang or disruptive group ..., specifically, any known member of the Delhi street gang.”
II.
A. District Court’s Compliance with Rule 32(i)(l)(A)
Rule 32(i)(1)(A) requires a district court to “verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report.”
A district court need not specifically inquire whether a defendant has read the presentence report, United States v. Lewis, 880 F.2d 243, 245 (9th Cir. 1989); however, for Rule 32(a)(1)(A) to be satisfied, the sentencing judge must “reasonably rel[y] on evidence indicating that a defendant has read the presentence report and discussed it with counsel,” id. at 246. Here, no such direct evidence exists. Although Soltero was informed of the PSR’s existence when the district judge alluded to it at his change of plea hearing, merely informing a defendant that a PSR would be prepared and that he would have a chance to read and discuss it with his attorney does not prove that these events actually took place. United States v. Esparza-Gonzalez, 268 F.3d 272, 274 (5th Cir. 2001).
Additionally, although Soltero’s attorney objected to portions of the PSR (and at least some of these objections were likely based on discussions with Soltero), counsel’s objections do not confirm that Soltero read the entire PSR and had a chance to point out any factual errors. United States v. Osborne, 291 F.3d 908, 910 (6th Cir. 2002); United States v. Lockhart, 58 F.3d 86, 88-89 (4th Cir. 1995). Finally, while Soltero’s attorney repeatedly used the word “we” when discussing the defense’s PSR objections (which might imply that he spoke for both him and Soltero), we have already held that use of the word “we” by defense counsel proves nothing, as “we” is a “common stylistic device used by lawyers.” United States v. Sustaita, 1 F.3d 950, 953 (9th Cir. 1993). Because the district court neither directly asked Solte-ro if he had read the PSR and discussed it with his attorney nor relied on evidence indicating the same, we hold that the court’s inquiry was inadequate under Rule 32(i)(1)(A).
Soltero believes our inquiry should end there and that we should automatically remand his case for resentencing because, “[g]iven the court’s failure to comply with Rule 32, we have no assurance that the PSR was accurate.” While we acknowledge that some circuits have adopted this approach, see, e.g., Osborne, 291 F.3d at 910-11, this circuit has consistently held that, “if it is clear that no prejudice resulted” from a court’s failure to comply with the letter of Rule 32(i)(1)(A), the error is harmless, and resentencing is unnecessary. United States v. Davila-Escovedo, 36 F.3d 840, 844 (9th Cir. 1994); Sustaita, 1 F.3d at 954. Although we emphasize that this error can be, and should be, “easily avoided,” Sustaita, 1 F.3d at 954, we still agree — as do several other circuits
Here, just as in Davila-Escovedo, Soltero has “made no affirmative allegation that he failed to read the report”
B. The Treatment Condition
Soltero’s next contention is that the following condition impermissibly delegates to the probation officer the court’s exclusive authority under 18 U.S.C. § 3672:
As directed by the Probation Officer, the defendant shall pay all or part of the costs of treating the defendant’s drug dependency and/or alcohol dependency to the aftercare contractor during the period of community supervision, pursuant to 18 U.S.C. § 3672. Defendant shall provide payment and proof of payment as directed by the Probation Officer. [Condition 6]
He argues that, pursuant to 18 U.S.C. § 3672, only courts are allowed to make determinations as to a defendant’s ability to make such payments and whether such payments should be made. We review this claim for an abuse of discretion. United States v. Williams, 356 F.3d 1045, 1052 (9th Cir. 2004).
We addressed this precise issue in United States v. Dupas, 419 F.3d 916, 924 (9th Cir. 2005).
[T]he context of the provision in § 3672 is quite different from the context found in §§ 3572 and 3664. The later provisions relate generally to the court’s imposition of sentences and restitution. Section 3672, by contrast, is directed primarily to the functions of the probation office. Moreover, the need to interpret the statute strictly so as to reserve core judicial functions to the court is weaker here; the condition at issue does not delegate to the probation officer the power to order substance abuse treatment in the first place. Finally, § 3672 requires the court only to find generally that funds are available to pay for an offender’s treatment and, if so, allows the court to direct that such funds be paid. By contrast § 3572(d) and § 3664(f) expressly require the court to establish or specify the precise payment schedule.
Id. at 924 (citations omitted). Based on Dupas, the district court did not abuse its discretion in delegating the cost determination to the probation office.
Soltero also argues that the payment conditions should be vacated because
C. The Legal Name Condition
The second condition Soltero disputes reads as follows:
The defendant shall not obtain or possess any driver’s license, Social Security number, birth certificate, passport or any other form of identification in any name, other than the defendant’s true legal name, without the prior written approval of the Probation Officer; nor shall the defendant use, for any purpose or in any manner, any name other than his true legal name.
At sentencing, Soltero explained that his true legal surname may technically be “Resinger,”
We agree. While it is possible that “Soltero” is the defendant’s “true legal name” (as the government contends),
D. Conditions Relating to Gang Association
The final set of conditions Soltero disputes reads as follows:
Condition 8:
The defendant shall not associate with any known member of any criminal street gang or disruptive group as directed by the Probation Officer, specifically, any known member of the Delhi street gang;
Condition 9:
The defendant shall not be present in any area known as a criminal street gang gathering of the Delhi, as directed by the Probation Officer;
The defendant shall not wear, display, use or possess any insignia, emblem, button, badge, cap, hat, scarf, bandana, jewelry, paraphernalia, or any article of clothing which may connote affiliation with, or membership in the Delhi gang.
The district court justified its imposition of these conditions by stating that “defendant is a Delhi gang member and is presumably familiar with the relevant insignia, commonly known gathering places, and pertinent members” of this gang.
Soltero nonetheless argues that the terms “associate,” “any criminal street gang,” “disruptive group,” “any area known as a criminal street gang gathering of the Delhi,” and “items that connote affiliation with, or membership in the Delhi gang” are impermissibly vague. United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004) (“A [condition of supervised release] ‘violates due process of law if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” (quoting United States v. Loy, 237 F.3d 251, 262 (3d Cir. 2001))). He also argues that the conditions are overbroad because casual contact with others — including contacts protected by the First Amendment— could render him in violation of these conditions.
While a district court’s discretion to set conditions of supervised release is broad even when those conditions affect fundamental rights, United States v. Bee, 162 F.3d 1232, 1234 (9th Cir. 1998), restrictions infringing upon fundamental rights are “reviewed carefully,” United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988). A restriction on a defendant’s right to free association is nonetheless valid if 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).” 18 U.S.C. § 3583(d); United States v. Sales, 476 F.3d 732, 735 (9th Cir. 2007).
Here, the conditions imposed upon Soltero were, in all but one respect, within the district court’s discretion to impose. Conditions 9 and 10 are not impermissibly vague because they specifically reference the “Delhi gang,” and the district court is entitled to presume that Soltero — who has admitted to being a member of this gang— is familiar with the Delhi gang’s members, its places of gathering, and its paraphernalia. Hugs, 384 F.3d at 768; see also United States v. Ross, 476 F.3d 719, 722-23 (9th Cir. 2007) (upholding supervised release condition requiring defendant to refrain from associating with known neo-Nazi/white supremacist groups); United States v. Schiff, 876 F.2d 272, 276 (2d Cir. 1989) (condition forbidding parolee from “associat[ing] with any group that advocates non-compliance with the tax laws” not vague or overbroad). Moreover, the conditions meet the criteria set forth in 18 U.S.C. § 3583(d). See Ross, 476 F.3d at 721-22; United States v. Bolinger, 940 F.2d 478, 480 (9th Cir. 1991) (“Probation conditions may seek to prevent reversion into a former crime-inducing lifestyle by barring contact with old haunts and associates, even though the activities may be legal.”).
The portion of Condition 8 forbidding Soltero from “associating]” with “any known member of any criminal street gang ..., specifically, any known member of the Delhi street gang,” is also permissible. As explained above, the term “Delhi street
Condition 8 crosses the line, however, in prohibiting Soltero from associating with “any known member of any ... disruptive group.” As Soltero points out, the term “disruptive group” has a broad meaning and could reasonably be interpreted to include not only a criminal gang, but also a labor union on strike, a throng of political protesters, or a group of sports fans celebrating after their team’s championship victory. It is not immediately apparent to us — and the government makes no effort to explain — how prohibiting Soltero from associating with the latter three “disruptive groups” is “reasonably related” to a permissible goal of supervised release, such as protection of the public or Soltero’s own rehabilitation. See 18 U.S.C. § 3583(d); Sales, 476 F.3d at 735. Accordingly, the substantial encroachment upon Soltero’s First Amendment rights created by the portion of Condition 8 prohibiting him from associating with “any known member of ... any disruptive group” is without sufficient justification and must be stricken. See Terrigno, 838 F.2d at 374 (“The mere fact that a condition restricts a probationer’s freedom to perform otherwise lawful activities is not dispositive of the reasonableness of the condition. But if conditions are drawn so broadly that they unnecessarily restrict otherwise lawful activities they are impermissible.” (internal citations omitted)).
AFFIRMED in part and REMANDED in part.
., Soltero explained to the court during the change of plea hearing that his legal birth name is Dean Harlon Resinger, although he has used his stepfather’s surname, Soltero, since age two. See infra Part II.C.
. The condition continued as reproduced infra Part II.D.
. Prior to December 1, 2002, the verification requirement was referenced in Rule 32(c)(3)(A) and, before December 1, 1994, in Rule 32(a)(1)(A).
. See United States v. Stevens, 223 F.3d 239, 242-46 (3d Cir. 2000); Lockhart, 58 F.3d at 89; United States v. Rangel-Arreola, 991 F.2d 1519, 1526 (10th Cir. 1993); United States v. Rodriguez-Luna, 937 F.2d 1208, 1213 (7th Cir. 1991).
. We recognize that we reviewed the delegation in Dupas for plain error. Although we employ an abuse of discretion standard in this case, Dupas’s logic is nonetheless applicable.
. Although the dissent asserts that assigning the cost determination to the probation office was an unconstitutional delegation of the authority of the court, the punishment is still within the hands of the court at the time of the hearing on violations of the conditions of supervised release. The probation office does not have the power to punish Soltero; it only has the power to direct Soltero to pay for his treatment, if he is able.
. This is because Soltero was born "Dean Harlon Resinger'' and, although his mother remarried a man with the surname "Soltero” when he was two years old (at which time Soltero adopted this surname and proceeded to use it from that point forward), Soltero’s stepfather never formally adopted him, and Soltero never officially changed his legal name. See Black’s Legal Dictionary (8th ed. 2004) (defining "legal name” as the name "usu[ally] acquired at birth or through a court order.”).
. As the government noted at sentencing, "Soltero” is the name reflected in the defendant’s criminal history records, Social Security documentation, and marriage license.
. Although it is not crucial to our finding that the meaning of "criminal street gang” would be apparent to the average person, we note that 18 U.S.C. § 521(a) defines "criminal street gang” as "an ongoing group, club, organization, or association of 5 or more persons ... that has as [one] of its primary purposes the commission of [one] or more of the criminal offenses described in [18 U.S.C. § 521(c) and] ... the members of which engage, or have engaged within the past 5 years, in a continuing series of offenses described in [§ 521(c)].”
. We note that Soltero only violates the condition if the gang member he associates with is known to him to be a gang member, thus undermining his argument that he is "expected to know of every gang currently operating on the streets ... as well as gangs operating after his release from prison....” See Ross, 476 F.3d at 722-23; see also United States v. Johnson, 446 F.3d 272, 281 (2d Cir. 2006) ("Generally, supervised release provisions are read to exclude inadvertent violations.”).
.The government argues that, read in context, it is clear that the term "disruptive group” was intended to cover only those disruptive groups that are also "gangs.” However, even if Soltero would only be prosecuted for a supervised release violation if he associated with disruptive gangs (and not if he associated with other arguably "disruptive groups ”) — which, if true, would make the condition redundant and, thus, unnecessary for the government’s stated purposes — there is no way for Soltero to know this from the condition’s plain language.
A probationer must be put on clear notice of what conduct will (and will not) constitute a supervised release violation, a rule that is of particular importance when the condition seems to reach constitutionally protected conduct. See United States v. Chapel, 428 F.2d 472, 473-74 (9th Cir. 1970). An overly broad condition like this one cannot be "saved” merely because the government promises to enforce it in a narrow manner. See United States v. Loy, 237 F.3d 251, 266 (3d Cir. 2001)
Reference
- Full Case Name
- UNITED STATES of America, Plaintiff-Appellee, v. Dean Harlon SOLTERO, A/K/A Dean Harlon Resinger, Dean Harlon Soctero, Dean Harlow Soctero, Dean Harlow Soltero and “Huero,” Defendant-Appellant
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