United States v. Harris

Opinion

FILED United States Court of Appeals Tenth Circuit

UNITED STATES COURT OF APPEALS October 29, 2019 Elisabeth A. Shumaker TENTH CIRCUIT Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 18-1492 (D.C. No. 1:18-CR-00375-RM-1) STEVEN DUWAYNE HARRIS, also (D. Colo.) known as Stephen Duane Harris, also known as Stephen Duwayne Harris, also known as Stephen Dywayne Harris, also known as Stephan Duane Harris,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before HOLMES, MURPHY, and CARSON, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist in the determination

* This order and judgment is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Steven Harris pleaded guilty to one count of being a felon in possession of

a firearm. 18 U.S.C. § 922(g)(1). The probation office recommended that the

district court impose, at sentencing, standard condition of supervised release

twelve (“Standard Condition Twelve”). Standard Condition Twelve provides: “If

the probation officer determines that you pose a risk to another person (including

an organization), the probation officer may require you to notify the person about

the risk and you must comply with that instruction.” U.S.S.G. § 5D1.3(c)(12).

Harris objected, asserting Standard Condition Twelve “improperly delegate[d]

power to the probation department that should lie with the [c]ourt.” He claimed

“[a] probation officer should not have unfettered authority to require an

individual on supervised release to notify or require notification of unidentified

‘risks’ to third parties” and asserted it was the district court’s “duty to determine

the appropriate parameters for this condition, leaving the probation officer only

the administration of those parameters.” The district court overruled Harris’s

objection. In doing so, the district court explained its position was “consistent”

with the one it had previously taken in United States v. Cabral, 926 F.3d 687

(10th Cir. 2019), which was at that time on appeal before this court.

Cabral has now been decided. Cabral held that Standard Condition Twelve

“is an improper delegation of judicial power” because it grants probation officers “decision-making authority that could infringe on a wide variety of liberty

interests.” Id. at 699. In an exhibition of admirable candor, the United States

concedes that Cabral controls the disposition of this appeal and compels a remand

to the district court for resentencing. See id. Accordingly, this court exercises

jurisdiction pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291 and remands

to the district court to vacate Harris’s sentence and to resentence him consistent

with this court’s opinion in Cabral. See id.

ENTERED FOR THE COURT

Michael R. Murphy Circuit Judge

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