United States v. Gregory Monroe

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 4, 2019
• Docket: 18-50144
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JAN 04 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50144

Plaintiff-Appellee, D.C. No. 2:17-cr-00657-R-1

v. MEMORANDUM* GREGORY MONROE,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding

Argued and Submitted December 7, 2018 Pasadena, California

Before: RAWLINSON and BEA, Circuit Judges, and SETTLE,** District Judge.

Gregory Monroe (Monroe) appeals the district court’s judgment revoking

his supervised release and imposing supervised released conditions.

Charge One of the revocation petition alleged that Monroe violated the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Benjamin H. Settle, United States District Judge for the Western District of Washington, sitting by designation. provision of his supervised release requiring him to reside at, participate in, and

successfully complete a residential substance abuse treatment and counseling

program by failing to enter the designated residential treatment program as directed

by the probation officer. Charge Two alleged that Monroe had used a controlled

substance, as evidenced by laboratory analysis of his urine sample. Monroe denied

Charge One and admitted Charge Two. The district court sustained both

allegations, sentencing Monroe to nine months’ imprisonment, followed by 25

months of supervised release.

We review for abuse of discretion the district court’s revocation of

supervised release. See United States v. Thum, 749 F.3d 1143, 1145 (9th Cir.

2014). When reviewing a sufficiency of the evidence challenge to the revocation of

supervised release, we “ask whether, viewing the evidence in the light most

favorable to the government, any rational trier of fact could have found the

essential elements of a violation by a preponderance of the evidence.” Id. at 1145-

46 (citation and internal quotation marks omitted).

Contrary to Monroe’s contentions, the evidence was sufficient to support a

finding that he failed to enter a residential drug treatment facility on February 23,

2018, a Grade C violation. See U.S.S.G. § 7B1.1. The record reflects that Monroe

failed to enter the drug treatment program on February 23, 2018, as directed by his

2 probation officer. See United States v. Hinkson, 585 F.3d 1247, 1264 (9th Cir.

2009) (“[W]e will affirm a district court’s factual finding unless that finding is . . .

without support in inferences that may be drawn from the record.”).

At minimum, Monroe admitted to Charge Two, also a Grade C violation,

see U.S.S.G. § 7B1.1, and one violation of a condition is a sufficient basis for

revocation. See United States v. Daniel, 209 F.3d 1091, 1094, amended, 216 F.3d

1201 (9th Cir. 2000). Thus, even if the district court abused its discretion in

sustaining Charge One, any error was harmless. See United States v. Ali, 620 F.3d

1062, 1074 (9th Cir. 2010) (characterizing error as harmless where “no evidence of

any of these alleged errors, if changed, would result in a shorter sentence”).

Next, Monroe asserts, and the government concedes, that the district court’s

imposition of three unconstitutionally vague standard supervised release conditions

constitutes plain error. See United States v. Evans, 883 F.3d. 1154, 1162-64 (9th

Cir. 2018). Specifically, Monroe objects to the conditions requiring that he

“support his or her dependents and meet other family responsibilities,” “work

regularly at a lawful occupation, unless excused by the probation officer for

schooling, training or other acceptable reasons,” and “notify third parties of risks

that may be occasioned by [his] criminal record or personal history or

characteristics.” Therefore, we strike the unconstitutional text from the district

3 court judgment to comport with Evans, 883 F.3d at 1162-64.1 See United States v.

Long, 301 F.3d 1095, 1108 (9th Cir. 2002) (per curiam) (affirming modified

district court judgment).

We interpret the district court’s order entered on May 8, 2018, as

incorporating the special condition requiring successful completion of a residential

drug treatment and counseling program, entered on January 10, 2018. This

interpretation does not authorize separate placements into drug treatment and

mental health facilities. So construed, the district court’s specification of a

residential substance abuse and counseling program does not impermissibly

delegate to the probation officer whether a defendant must be committed to

inpatient or outpatient treatment. See United States v. Esparza, 552 F.3d 1088,

1091 n.5 (9th Cir. 2009) (per curiam).

Because the district court’s judgment has been modified to comport with

Evans and Esparza, and no remand is required, we need not address Monroe’s

request to assign this case to a different district judge.

1 The respective conditions should read: “defendant shall support his or her dependents,” see Evans, 883 F.3d at 1162-63; “defendant shall work at a lawful occupation unless excused by the probation officer for schooling, training, or other acceptable reasons,” see id. at 1163; and “as determined and directed by the probation officer, the defendant shall notify specific persons or organizations of specific risks posed to those persons or organizations by the defendant.” See id. at 1164. 4 JUDGMENT AFFIRMED AS MODIFIED.