United States v. Earlson Tullie

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10001 19-10068 Plaintiff-Appellee, D.C. No. v. 3:16-cr-08042-DJH-1

EARLSON TULLIE, MEMORANDUM* Defendant-Appellant.

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

Submitted April 17, 2020** San Francisco, California

Before: HAWKINS and PAEZ, Circuit Judges, and RESTANI,*** Judge.

In this consolidated appeal, Earlson Tullie challenges three conditions of

supervised release that were imposed after he pled guilty to assaulting a child

* 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 Jane A. Restani, Judge for the United States Court of International Trade, sitting by designation. under the age of sixteen. We affirm in part, vacate in part, and remand for further

proceedings consistent with this disposition.

1. We agree that the district court initially erred when it delegated to the

probation officer the authority to decide whether Tullie should participate in a sex

offender treatment program but conclude that the error was not plain. As we and

other courts have held, only a district court can impose such requirements. See

United States v. Esparza, 552 F.3d 1088, 1091 (9th Cir. 2009) (striking language

from special condition requiring sex offender treatment, “which may include

inpatient treatment, as approved and directed by the Probation Officer”).

Nonetheless, the district court itself later imposed sex offender treatment

after Tullie’s first and second revocation hearings, after considering the results of

Tullie’s psychosexual exam, his prior incriminating statements, and his

concealment of his contacts with minors while on supervised release. Thus,

although the initial delegation of authority to the probation officer was improper,

the district court eventually determined on its own that sex offender treatment was

necessary. We thus cannot say that “the condition would not have been imposed

had the error not occurred.” United States v. Barsumyan, 517 F.3d 1154, 1162 (9th

Cir. 2008).

2. We agree, and the government concedes, the district court erred when its

written revocation order diverged from an “unambiguous” oral pronouncement.

2 United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993). At the hearing, the

district court ordered Tullie to “maintain full-time employment and/or schooling as

directed by your probation officer,” but the district court’s written revocation order

dropped the reference to “schooling” and added language authorizing the probation

officer to require Tullie to perform “up to 20 hours of community service per

week” if he was not employed full-time. The oral pronouncement “must control.”

Hicks, 997 F.2d at 597.

3. We agree that the district court plainly erred by imposing special

condition number nine, which restricts Tullie from “engaging in any occupation,

business, volunteer activity or profession” carrying “the potential to be alone with

children,” because the condition is overbroad. (Emphasis added.) Compliance

with this condition would leave only professions in industries that rigidly prohibit

the presence of minors, such as a bar, casino, or adult-entertainment venue.

Nothing in the record suggests Tullie had an ongoing propensity to harm children,

particularly random children he might “potentially” encounter on the job. And we

have rejected similarly broad conditions, even when the defendant was convicted

of more serious crimes. See, e.g., United States v. Wolf Child, 699 F.3d 1082,

1087 (9th Cir. 2012) (striking condition prohibiting defendant from dating anyone

who has minor children).

Further, the error was plain because it was “clear” that the condition

3 contained no qualifying or limiting principle and thus prohibited far more liberty

than was reasonably necessary to accomplish the goals of deterrence, protection of

the public, or rehabilitation. See 18 U.S.C. § 3583(d); Wolf Child, 699 F.3d at

1087. The error also affected substantial rights because “the condition would not

have been imposed had the error not occurred.” Barsumyan, 517 F.3d at 1162.

Last, a legally void condition that carries with it the threat of punishment seriously

affects the fairness, integrity, or public reputation of judicial proceedings.

AFFIRMED in part, VACATED in part, and REMANDED.