United States v. Darra Kitchen

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 2019
• Docket: 18-50330
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 30 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50330

Plaintiff-Appellee, D.C. No. 2:18-cr-00163-MWF-1 v.

DARRA DANIELLE KITCHEN, AKA MEMORANDUM* Dime, AKA Twitty,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Michael W. Fitzgerald, District Judge, Presiding

Argued and Submitted July 10, 2019 Pasadena, California

Before: M. SMITH and FRIEDLAND, Circuit Judges, and BASTIAN,** District Judge.

Following Defendant Darra Kitchen’s conviction for possession of stolen

mail, in violation of 18 U.S.C. § 1708, the district court sentenced her to 110 days’

imprisonment, followed by three months of supervised release. Kitchen appeals

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stanley A. Bastian, United States District Judge for the Eastern District of Washington, sitting by designation. the district court’s imposition of a special condition of supervised release requiring

Kitchen to submit her “computers[,] . . . cell phones, other electronic

communications or data storage devices . . . to a search . . . . upon reasonable

suspicion that [Kitchen] has violated a condition of [her] supervision and that the

areas to be searched contain evidence of this violation” (the Electronic Search

Condition). We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate the

Electronic Search Condition and remand to the district court.

Contrary to the government’s argument, Kitchen’s appeal is not moot.

Although the district court issued a new judgment after Kitchen violated the

conditions of supervised release, that judgment imposed the same conditions of

supervised release, including the Electronic Search Condition. Accordingly,

although Kitchen’s appeal challenges the district court’s original judgment, “we

construe [her] appeal also to challenge the district court's imposition of special

conditions of supervised release that parallel the original conditions of probation.”

United States v. Wynn, 553 F.3d 1114, 1119 (8th Cir. 2009). Because Kitchen is

still subject to the Electronic Search Condition, she “continue[s] to have a

‘personal stake in the outcome’ of the lawsuit,” and her appeal remains live. Lewis

v. Cont’l Bank Corp., 494 U.S. 472, 478 (1990) (quoting Los Angeles v. Lyons, 461

U.S. 95, 101 (1983)).

We conclude that the district court plainly erred by “fail[ing] adequately to

2 explain” why it imposed the Electronic Search Condition. United States v. Wolf

Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (quoting United States v. Carty, 520

F.3d 984, 993 (9th Cir. 2008) (en banc)). The court explained that it was imposing

the condition because it agreed “with the Government and the probation office []

that in light of the theft, [the Electronic Search Condition] does seem to be an

appropriate condition.” That explanation fails to “permit meaningful appellate

review,” Carty, 520 F.3d at 992, because it does not clarify why the Electronic

Search Condition was appropriate considering Kitchen’s crime. Contrary to the

government’s argument, we do not believe an “adequate explanation” for the

Electronic Search Condition “may [] be inferred from the PSR or the record as a

whole.” Id. Kitchen’s crime, possession of stolen mail, did not involve the use of

an electronic device, and it is not obvious in the absence of explanation why the

district court believed the Electronic Search Condition is reasonably related to the

goal of deterrence, protection of the public, or Kitchen’s rehabilitation, as required

by 18 U.S.C. § 3553(a). See United States v. T.M., 330 F.3d 1235, 1240 (9th Cir.

2003).

The district court also failed to explain why it rejected Kitchen’s “specific,

nonfrivolous argument [against the Electronic Search Condition] tethered to a

relevant § 3553(a) factor.” Carty, 520 F.3d at 992. Before the court imposed the

condition, Kitchen argued that, because “[t]here is no indication that [Kitchen] did

3 in this case or has ever used electronic means to steal mail or personally

identifiable information[, . . . .] intrusion into her and search into her personal

property . . . is greater than necessary to fulfill the requirements for sentencing.”

The court’s brief explanation, which did not respond to Kitchen’s contention, does

not “satisfy [us] that [it] considered the parties’ arguments and ha[d] a reasoned

basis for exercising [its] own legal decisionmaking authority.” Rita v. United

States, 551 U.S. 338, 356 (2007).1

VACATED and REMANDED.

1 Because we hold that the district court procedurally erred by failing to adequately explain why it imposed the Electronic Search Condition, we do not address Kitchen’s arguments that the district court abused its discretion by imposing the condition, that the condition is unconstitutionally vague and overbroad, or that the condition impermissibly delegates authority to the United States Probation Office.

4 FILED United States v. Kitchen, No. 18-50330 AUG 30 2019 MOLLY C. DWYER, CLERK FRIEDLAND, Circuit Judge, dissenting: U.S. COURT OF APPEALS

I believe that Kitchen’s appeal is moot. In my view, her appeal of the

district court’s imposition of the Electronic Search Condition as a condition of her

term of supervised release was mooted by the district court’s subsequent

revocation of that term. Although the district court subsequently imposed an

identical condition, Kitchen did not file a notice of appeal of that judgment and

therefore is not entitled to appellate review of that judgment. See Manrique v.

United States, 137 S. Ct. 1266, 1271-72 (2017) (“To secure appellate review of a

judgment or order, a party must file a notice of appeal from that judgment or

order.” (emphasis added)). I do not think the Eighth Circuit’s approach in United

States v. Wynn, 553 F.3d 1114 (8th Cir. 2009), resolves this problem, as the

defendant in Wynn did file a notice of appeal of the later judgment re-imposing the

supervision condition. Id. at 1116. I therefore believe we lack jurisdiction and

would dismiss Kitchen’s appeal without reaching the merits.

For these reasons, I respectfully dissent.