United States v. Arlow Kay

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 21, 2018
• Docket: 17-10122
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10122

Plaintiff-Appellee, D.C. No. 3:16-cr-08013-DJH-1 v.

ARLOW ANTONE KAY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Diane J. Humetewa, District Judge, Presiding

Submitted May 14, 2018** San Francisco, California

Before: THOMAS, Chief Judge, FRIEDLAND, Circuit Judge, and ZILLY,*** District Judge.

Arlow Antone Kay was charged with second-degree murder, but was found

guilty on only the lesser-included offense of voluntary manslaughter, and was

* 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). *** The Honorable Thomas S. Zilly, United States District Judge for the Western District of Washington, sitting by designation. sentenced to a term of 168 months. Kay raises both procedural and substantive

challenges to his sentence, and also assigns error to certain aspects of the various

conditions of supervised release imposed by the district court. The government

concedes that the supervised release conditions contain two flaws. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and

remand for the purpose of removing from the judgment the two requirements of

supervised release that are improper.

Kay’s contention, raised for the first time on appeal, that he did not receive

adequate notice of the grounds on which the district court relied in imposing a

sentence above the applicable range under the United States Sentencing Guidelines

(“U.S.S.G.”) is reviewed for plain error. United States v. Kaplan, 839 F.3d 795,

803 (9th Cir. 2016); see Fed. R. Crim. P. 52(b). The substantive reasonableness of

Kay’s sentence is reviewed for abuse of discretion. Kaplan, 839 F.3d at 804.

Kay asserts that the district court’s sentencing decision should be treated as a

“departure” from the applicable Guidelines and that, pursuant to Federal Rule of

Criminal Procedure 32(h), he was entitled to advance notice of the district court’s

intent to rely on two provisions of the Guidelines, namely U.S.S.G. §§ 5K2.1 and

5K2.6, that were not referenced in either the Presentence Investigation Report

(“PSR”) or the government’s sentencing memorandum. We need not decide

whether the district court engaged in a “departure” or a “variance,” which is not

2 governed by Rule 32(h), see Irizarry v. United States, 553 U.S. 708 (2008),

because, even if a “departure” occurred, Kay received all the notice that was due.

Both the PSR and the government’s sentencing memorandum relied on U.S.S.G. §

5K2.8 to recommend an above-Guidelines sentence, and the district court’s

references to U.S.S.G. §§ 5K2.1 and 5K2.6 were essentially redundant. Kay fails

to show how any lack of notice inhibited his ability to prepare for sentencing or

affected his substantial rights. See United States v. Cruz-Perez, 567 F.3d 1142,

1147 (9th Cir. 2009).

The district court acted within its discretion in requiring Kay to serve a term

of 168 months. It appropriately calculated the applicable Guidelines range and

then articulated specific grounds for deviating from the range. Kay’s arguments

that the district court relied on impermissible grounds in imposing the sentence at

issue ignore the standard of review that applies in light of United States v. Booker,

543 U.S. 220 (2005), pursuant to which we need not consider whether the district

court correctly applied a departure provision set forth in the Guidelines, but rather

review the deviation from the applicable range for reasonableness. United States v.

Tankersley, 537 F.3d 1100, 1113-14 & n.12 (9th Cir. 2008); see Kaplan, 839 F.3d

at 804; United States v. Mohamed, 459 F.3d 979, 986-87 (9th Cir. 2006). The

sentence at issue was “sufficient, but not greater than necessary,” 18 U.S.C.

§ 3553(a), and reasonable.

3 The government concedes the requirements that Kay (i) submit to searches

of his computers, electronic communications, and data storage devices or media,

and (ii) warn other occupants of shared premises about the potential for searches

were not appropriately included in one of the conditions of supervised release. The

district court is directed on remand to amend the judgment accordingly.

Kay contends that two other supervised release conditions, which require

him to timely report being “arrested or questioned” by a law enforcement officer

and prohibit him from owning, possessing, or having access to a “dangerous

weapon,” are unconstitutionally vague. We need not decide whether Kay’s void-

for-vagueness challenge is subject to plain error or de novo review because, either

way, it lacks merit. Neither condition is expressed in language “so vague that it

fails to provide people of ordinary intelligence with fair notice of what is

prohibited.” United States v. Sims, 849 F.3d 1259, 1260 (9th Cir. 2017).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.