United States v. Jeremy Clouse

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10441

Plaintiff-Appellee, D.C. No. 3:18-cr-00017-RCJ-WGC-1 v.

JEREMY CLOUSE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Argued and Submitted December 6, 2019 San Francisco, California

Before: SILER,** BYBEE, and R. NELSON, Circuit Judges.

Jeremy Clouse pled guilty to one count of possession of child pornography.

In the operative plea agreement, the Parties calculated the anticipated Sentencing

Guideline offense level at 22. During the negotiations, the parties did not account

for images which supported the application of an additional two-level enhancement

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. for possession of images of child pornography showing sadistic and masochistic

conduct. However, the presentence report recommended application of the two-

level enhancement. When Clouse objected to the application of the enhancement

at the sentencing hearing, the Government acknowledged that there was a factual

basis to apply the enhancement but still requested the sentence contemplated by the

plea agreement. The district court applied the enhancement, calculated the

Guideline range at 63 to 78 months, and imposed a 54-month sentence after

varying downwards.

Clouse appeals, arguing (1) the Government breached the plea agreement,

(2) the district court’s sentence was procedurally and substantively unreasonable,

and (3) the district court erred by imposing five unconstitutionally vague and

overbroad Special Conditions of Supervised Release. We have jurisdiction under

28 U.S.C. § 1291 and affirm in part and vacate in part.

We begin with Clouse’s argument that the Government breached the plea

agreement. The Government breaches a plea agreement implicitly when it

“superficially abide[s] by its promise to recommend a particular sentence while

also making statements that serve no practical purpose but to advocate for a

harsher one.” United States v. Heredia, 768 F.3d 1220, 1231 (9th Cir. 2014). But

the Government’s duty under Heredia is cabined by a countervailing duty of

candor to the court. “[A]ny time a prosecutor is aware that the court is about to

2 impose sentence based upon incomplete or inaccurate information, the prosecutor

has the duty to inform the court of the correct or missing information.” United

States v. Read, 778 F.2d 1437, 1442 (9th Cir. 1985) (quotation and citation

omitted).

Here, the Government complied with its obligations under Read. Although

the Government made statements indicating there was evidence that could support

application of the sentencing enhancement, it fulfilled—and in fact exceeded—its

duty under the terms of the plea agreement by recommending a 41-month sentence.

The Government’s statements in the sentencing memorandum and during the

change of plea hearing merely fulfilled its duty of candor to the court.

Next, we turn to Clouse’s arguments that the sentence imposed was

substantively and procedurally erroneous. Clouse’s argument regarding the

substantive unreasonableness of his sentence is unreviewable pursuant to the plea

waiver. And Clouse’s procedural unreasonableness arguments are all either barred

by the plea waiver or meritless under plain error review.

Finally, we turn to Clouse’s arguments regarding the Special Conditions of

Supervised Release. We conclude that that the district court did not plainly err in

imposing Special Conditions 5, 10, and 11. See United States v. Quinzon, 643 F.3d

1266, 1271–74 (9th Cir. 2011); see also United States v. Hovious, No. 18-10229, --

Fed. App’x --, 2019 WL 4391266 (9th Cir. Sept. 13, 2019). The Government

3 concedes that Special Conditions 4 and 7 should be remanded to the district court

for additional tailoring, and we therefore vacate those Special Conditions and

remand to the district court for the limited purpose of refining Special Condition 4

and conforming the written judgment to the oral pronunciation of Special

Condition 7.

Accordingly, we AFFIRM the district court’s determination that the

Government did not breach the plea agreement. We also AFFIRM the sentence

imposed. However, we VACATE Special Conditions 4 and 7 and REMAND to

the district court.