United States v. Jan Brewer

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 15, 2019
• Docket: 18-50237
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED MAY 15 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50237

Plaintiff-Appellee, D.C. No. 2:17-cr-00285-AB-1

v. MEMORANDUM* JAN BREWER,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California André Birotte, Jr., District Judge, Presiding

Submitted May 13, 2019** Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and KORMAN,*** District Judge.

Jan Brewer appeals from the district court’s judgment sentencing him to two

years’ incarceration “to run concurrently with defendant’s state sentence.” The

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. Fed. R. App. P. 34(a)(2). *** The Honorable Edward R. Korman, United States District Judge for the Eastern District of New York, sitting by designation. Bureau of Prisons did not credit Brewer any time toward his federal sentence

because he had already completed the six-month state term of imprisonment. The

district judge also imposed the following condition of supervised release: “As

directed by the probation officer, the defendant shall notify specific persons and

organizations of specific risks and shall permit the probation officer to confirm the

defendant’s compliance with such requirement and to make such notifications.”

Because Brewer did not object to the sentence, we review for plain error. United

States v. Joseph, 716 F.3d 1273, 1276–77 (9th Cir. 2013). Nevertheless, we may

review a pure question of law de novo if “the opposing party will suffer no

prejudice as a result of the failure to raise the issue in the trial court.” United States

v. Evans-Martinez, 611 F.3d 635, 642 (9th Cir. 2010) (internal quotation marks

omitted).

1. A term of imprisonment may not be imposed to run concurrently with a

discharged term of imprisonment. See 18 U.S.C. § 3584(a); Schleining v. Thomas,

642 F.3d 1242, 1248 n.8 (9th Cir. 2011); United States v. Turnipseed, 159 F.3d

383, 387 (9th Cir. 1998). But a district judge can give a defendant “credit for time

served” by imposing a lesser sentence, “thereby achieving the same result.” United

States v. Brito, 868 F.3d 875, 878 (9th Cir. 2017). Here, the record indicates that

2 the district judge may have attempted to “give [Brewer] a break” by running the

federal sentence “concurrently” with Brewer’s discharged state sentence. This he

could not do. We therefore remand for resentencing to give the district judge an

opportunity to clarify his intent.

2. The challenged condition of supervised release is unconstitutionally vague

under United States v. Evans, 883 F.3d 1154, 1163–64 (9th Cir. 2018), because it

fails to specify that the risks to be disclosed must be specific risks posed by the

defendant to the persons and organizations to be notified. To correct this

deficiency, the district court can modify the condition to conform to the Sentencing

Guidelines’ current standard notification condition, U.S.S.G. § 5D1.3(c)(12), or the

standard notification condition adopted by Central District of California General

Order No. 18-10 (condition 14). This modification not only clarifies the risks to be

disclosed but inherently limits notification to specific persons and organizations to

whom the defendant poses a risk.

VACATED AND REMANDED.