NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10101
Plaintiff-Appellee, D.C. No. 2:14-cr-00357-APG-VCF-1 v.
BRIAN WRIGHT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding
Argued and Submitted October 11, 2018 San Francisco, California
Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.
Brian Wright appeals the conditions and length of supervised release
imposed in 2016, the revocation of release and revocation sentence imposed in
2017, and the denial of his request for return of seized property. Because the
parties are familiar with the facts, we do not repeat them here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm in part, vacate in part, and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. remand for further proceedings.
Even if we assume Wright’s challenges to the terms of his 2016 sentence are
not time-barred, see Fed. R. App. P. 4, they nonetheless lack merit. Because
Wright did not raise objections to the conditions or length of supervised release,
we review them for plain error. United States v. Bonilla-Guizar, 729 F.3d 1179,
1187 (9th Cir. 2013). The court did not err in justifying three years of supervised
release with the need for rehabilitation. “Courts may factor in rehabilitation when
they are terminating or extending supervised release, because neither of these
actions involves sending a defendant to prison.” United States v. Grant, 664 F.3d
276, 280 (9th Cir. 2011). In light of Wright’s criminal history, it was not plain
error for the district court to conclude that the search condition “reasonably
related” to public safety and deterrence, did not deprive Wright of more “liberty
than is reasonably necessary,” and otherwise satisfied the requirements of
18 U.S.C. § 3583(d)(2).
We review de novo Wright’s constitutional claims that the conditions
prohibiting criminal activity and associating with persons “engaged in criminal
activity” were impermissibly vague. United States v. Evans, 883 F.3d 1154, 1159-
60 (9th Cir. 2018). The advertisements bearing Wright’s phone number were
connected to and in furtherance of criminal acts, i.e., pandering and living off the
proceeds of prostitution, clearly proscribed by the plain language of the condition.
2 A “m[a]n of common intelligence” need not “guess” that the condition prohibiting
associating with persons “engaged in criminal activity” prohibits dating and
residing with a person recently arrested for prostitution-related activities who, at
his behest and with his support, continues to be engaged in similar behavior. Id. at
1160 (citation omitted). Neither condition was unconstitutionally vague. Nor was
the association condition overbroad.
Turning to the revocation proceedings in 2017, Wright had “no right to the
assistance of standby counsel” in such proceedings. United States v. Mendez-
Sanchez, 563 F.3d 935, 947 (9th Cir. 2009). The appointment of standby counsel
is “best left to the sound discretion of the” district court, Locks v. Sumner, 703 F.2d
403, 408 (9th Cir. 1983), and here, the magistrate judge laid out the circumstances
and reasonably concluded that appointing new standby counsel days prior to the
revocation hearing was inappropriate. Wright did not renew his request for
standby assistance during the revocation hearing. Wright’s due process claim with
respect to the library is without merit as it is rooted in the Sixth Amendment, see
Milton v. Morris, 767 F.2d 1443, 1445 (9th Cir. 1985), which is “not relevant to
revocation proceedings.” United States v. Santana, 526 F.3d 1257, 1262 (9th Cir.
2008).
As to Wright’s claim under the Jencks Act, production of the special agent’s
grand jury testimony was not required because it did not “relate generally to the
3 events and activities testified to” during the revocation hearing. United States v.
Brumel-Alvarez, 991 F.2d 1452, 1464 (9th Cir. 1992) (emphasis and internal
quotation marks omitted). The grand jury testimony would have pertained to
Wright’s alleged role in several robberies in 2014, while the special agent’s
revocation hearing testimony focused on Wright’s violations of supervised release
in 2016 and 2017. Any error in failing to conduct in camera review of the
transcripts was harmless because their subject matter was not disputed. See United
States v. Riley, 189 F.3d 802, 805-06 (9th Cir. 1999).
Because Wright did not move to suppress evidence related to the
Government’s warrantless search of his cell-site location data during the
revocation hearing, we review for plain error. See United States v. Fernandez,
388 F.3d 1199, 1217 (9th Cir. 2004). It is undisputed that “the exclusionary rule
does not apply to supervised release revocation hearings.” United States v. Hebert,
201 F.3d 1103, 1104 (9th Cir. 2000). Even if evidence “obtained through an
egregious violation of the Fourth Amendment” should be excluded in the
revocation context, Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir. 1994), no
“egregious violation” occurred here.
Wright also contends that evidence related to the advertisement and
telephone recording databases should have been excluded because it was obtained
without a warrant. However, the special agent did not conduct a Fourth
4 Amendment “search” by accessing these databases. See United States v. Diaz-
Castaneda, 494 F.3d 1146, 1151 (9th Cir. 2007). Further, Wright lacked any
protected privacy interest in the information obtained from the databases. See
United States v. Borowy, 595 F.3d 1045, 1048 (9th Cir. 2010) (publicly exposed
digital files); United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir. 1996)
(recorded jail calls).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 2 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10101
Plaintiff-Appellee, D.C. No. 2:14-cr-00357-APG-VCF-1 v.
BRIAN WRIGHT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding
Argued and Submitted October 11, 2018 San Francisco, California
Before: McKEOWN, W. FLETCHER, and BYBEE, Circuit Judges.
Brian Wright appeals the conditions and length of supervised release
imposed in 2016, the revocation of release and revocation sentence imposed in
2017, and the denial of his request for return of seized property. Because the
parties are familiar with the facts, we do not repeat them here. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm in part, vacate in part, and
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. remand for further proceedings.
Even if we assume Wright’s challenges to the terms of his 2016 sentence are
not time-barred, see Fed. R. App. P. 4, they nonetheless lack merit. Because
Wright did not raise objections to the conditions or length of supervised release,
we review them for plain error. United States v. Bonilla-Guizar, 729 F.3d 1179,
1187 (9th Cir. 2013). The court did not err in justifying three years of supervised
release with the need for rehabilitation. “Courts may factor in rehabilitation when
they are terminating or extending supervised release, because neither of these
actions involves sending a defendant to prison.” United States v. Grant, 664 F.3d
276, 280 (9th Cir. 2011). In light of Wright’s criminal history, it was not plain
error for the district court to conclude that the search condition “reasonably
related” to public safety and deterrence, did not deprive Wright of more “liberty
than is reasonably necessary,” and otherwise satisfied the requirements of
18 U.S.C. § 3583(d)(2).
We review de novo Wright’s constitutional claims that the conditions
prohibiting criminal activity and associating with persons “engaged in criminal
activity” were impermissibly vague. United States v. Evans, 883 F.3d 1154, 1159-
60 (9th Cir. 2018). The advertisements bearing Wright’s phone number were
connected to and in furtherance of criminal acts, i.e., pandering and living off the
proceeds of prostitution, clearly proscribed by the plain language of the condition.
2 A “m[a]n of common intelligence” need not “guess” that the condition prohibiting
associating with persons “engaged in criminal activity” prohibits dating and
residing with a person recently arrested for prostitution-related activities who, at
his behest and with his support, continues to be engaged in similar behavior. Id. at
1160 (citation omitted). Neither condition was unconstitutionally vague. Nor was
the association condition overbroad.
Turning to the revocation proceedings in 2017, Wright had “no right to the
assistance of standby counsel” in such proceedings. United States v. Mendez-
Sanchez, 563 F.3d 935, 947 (9th Cir. 2009). The appointment of standby counsel
is “best left to the sound discretion of the” district court, Locks v. Sumner, 703 F.2d
403, 408 (9th Cir. 1983), and here, the magistrate judge laid out the circumstances
and reasonably concluded that appointing new standby counsel days prior to the
revocation hearing was inappropriate. Wright did not renew his request for
standby assistance during the revocation hearing. Wright’s due process claim with
respect to the library is without merit as it is rooted in the Sixth Amendment, see
Milton v. Morris, 767 F.2d 1443, 1445 (9th Cir. 1985), which is “not relevant to
revocation proceedings.” United States v. Santana, 526 F.3d 1257, 1262 (9th Cir.
2008).
As to Wright’s claim under the Jencks Act, production of the special agent’s
grand jury testimony was not required because it did not “relate generally to the
3 events and activities testified to” during the revocation hearing. United States v.
Brumel-Alvarez, 991 F.2d 1452, 1464 (9th Cir. 1992) (emphasis and internal
quotation marks omitted). The grand jury testimony would have pertained to
Wright’s alleged role in several robberies in 2014, while the special agent’s
revocation hearing testimony focused on Wright’s violations of supervised release
in 2016 and 2017. Any error in failing to conduct in camera review of the
transcripts was harmless because their subject matter was not disputed. See United
States v. Riley, 189 F.3d 802, 805-06 (9th Cir. 1999).
Because Wright did not move to suppress evidence related to the
Government’s warrantless search of his cell-site location data during the
revocation hearing, we review for plain error. See United States v. Fernandez,
388 F.3d 1199, 1217 (9th Cir. 2004). It is undisputed that “the exclusionary rule
does not apply to supervised release revocation hearings.” United States v. Hebert,
201 F.3d 1103, 1104 (9th Cir. 2000). Even if evidence “obtained through an
egregious violation of the Fourth Amendment” should be excluded in the
revocation context, Orhorhaghe v. INS, 38 F.3d 488, 493 (9th Cir. 1994), no
“egregious violation” occurred here.
Wright also contends that evidence related to the advertisement and
telephone recording databases should have been excluded because it was obtained
without a warrant. However, the special agent did not conduct a Fourth
4 Amendment “search” by accessing these databases. See United States v. Diaz-
Castaneda, 494 F.3d 1146, 1151 (9th Cir. 2007). Further, Wright lacked any
protected privacy interest in the information obtained from the databases. See
United States v. Borowy, 595 F.3d 1045, 1048 (9th Cir. 2010) (publicly exposed
digital files); United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir. 1996)
(recorded jail calls).
There was ample evidence supporting the conclusions that Wright engaged
in pandering, lived off the proceeds of prostitution, associated with persons
engaged in criminal activity, resisted officers, and changed his residence.
“[V]iewing the evidence in the light most favorable to the government,” we
conclude that a “rational trier of fact could have found the essential elements of
[the alleged] violation[s]” by a “preponderance of the evidence.” United States v.
Jeremiah, 493 F.3d 1042, 1045 (9th Cir. 2007) (internal quotation marks omitted).
With respect to Wright’s claim of error regarding calculation of the
Guidelines range, even assuming the district court did not conclusively determine
the grade, any such error was harmless. The district court included the correct
Guidelines range in its analysis and “perform[ed the] sentencing analysis [three
times], beginning with . . . the correct and incorrect range[s].” United States v.
Munoz-Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir. 2011). Thus, the conditions
and length of Wright’s original supervised release, the revocation of that release,
5 and the revocation sentence are affirmed.
Reviewing de novo, we reach a different conclusion regarding the denial of
Wright’s request for the return of cash seized during his 2014 arrest.1 See United
States v. Marolf, 173 F.3d 1213, 1216 (9th Cir. 1999). Because Wright sought
return of this property after his underlying criminal proceedings ended, he “[was]
presumed to have a right to its return, and the government ha[d] the burden of
demonstrating that it ha[d] a legitimate reason to retain the property.” United
States v. Martinson, 809 F.2d 1364, 1369 (9th Cir. 1987). However, the magistrate
judge’s conclusion that “Wright has not shown he is the rightful owner of the
money and is not entitled to” its return improperly relieved the Government of its
threshold burden of establishing that the cash was “contraband or subject to
forfeiture.” Id.; see United States v. Gladding, 775 F.3d 1149, 1152-53 (9th Cir.
2014). We vacate the order accepting the report and recommendation on seizure of
the cash and remand for further proceedings.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
1 Contrary to the Government’s assertion, the district court accepted and docketed Wright’s notice of appeal of this order.