United States v. Jonathan Davis

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 15, 2019
• Docket: 18-10236
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10236

Plaintiff-Appellee, D.C. No. 2:17-cr-00841-DGC-1 v.

JONATHAN FRANK DAVIS, AKA MEMORANDUM* Johnny Stax,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Submitted November 12, 2019** San Francisco, California

Before: BEA and LEE, Circuit Judges, and PIERSOL,*** District Judge.

* 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 Lawrence L. Piersol, United States District Judge for the District of South Dakota, sitting by designation. Appellant Jonathan Davis appeals from the district court’s judgment and

challenges conditions of supervised release imposed following his guilty plea

conviction for transporting individuals to engage in prostitution in violation of 18

U.S.C. § 2421. We dismiss.

Davis argues that the “coercive plea bargaining process” and possibility of

receiving a severe sentence if he proceeded to trial rendered his guilty plea

involuntary. Davis also contends that the district court erred in imposing conditions

of supervised release requiring him to participate in substance abuse treatment and

a domestic violence program, prohibiting him from using or possessing alcohol or

controlled substances, including marijuana, and allowing a probation officer to

require that Davis contact a person if the probation officer determines that Davis

poses a risk to that person. The government contends that this appeal is barred by

a valid appeal waiver.

We review de novo whether a guilty plea was voluntary, United States v.

Forrester, 616 F.3d 929, 934 (9th Cir. 2010), and whether a defendant has waived

his appellate rights pursuant to a plea agreement, United States v. Lightfoot, 626 F.3d

1092, 1094 (9th Cir. 2010). Because Davis did not object to the challenged

supervised release conditions in the district court, this court reviews the district

court’s sentence, including the supervised release conditions, for plain error. United

States v. Cope, 527 F.3d 944, 957 (9th Cir. 2008).

2 “A defendant’s waiver of his appellate rights is enforceable if (1) the

language of the waiver encompasses his right to appeal on the grounds raised, and

(2) the waiver is knowingly and voluntarily made.” United States v. Rahman, 642

F.3d 1257, 1259 (9th Cir. 2011) (quoting United States v. Jeronimo, 398 F.3d 1149,

1153 (9th Cir. 2005)). The terms of the appeal waiver in Davis’s plea agreement

unambiguously encompass this appeal. The record also reflects that Davis waived

his appellate rights knowingly and voluntarily, see United States v. Watson, 582

F.3d 974, 986–87 (9th Cir. 2009), and that his guilty plea was knowing

and voluntary, United States v. Kaczynski, 239 F.3d 1108, 1114–15 (9th Cir.

2001). Thus, the appeal waiver in Davis’s plea agreement is enforceable.

Ordinarily, the appeal waiver would also bar Davis’s challenge to conditions

of his supervised release. Davis, however, invokes the exception that “[a]n appeal

waiver will not apply if . . . the sentence violates the law.” United States v. Bibler,

495 F.3d 621, 624 (9th Cir. 2007). “A sentence is illegal if it exceeds the permissible

statutory penalty for the crime or violates the Constitution.” Id. The court reviews

de novo “[w]hether a supervised release condition illegally exceeds the permissible

statutory penalty or violates the Constitution.” Watson, 582 F.3d at 981. The court

looks to the substantive requirements of the statute governing supervised release

conditions—here, 18 U.S.C. § 3583(d)—to determine whether a condition exceeds

3 the permissible statutory penalty. See United States v. Mendez–Gonzalez, 697 F.3d

1101, 1103–04 (9th Cir. 2012); Watson, 582 F.3d at 982–84, 987.

We reject Davis’s argument that Mandatory Conditions 2 and 3, which

prohibit the use and possession of controlled substances including marijuana, are

illegal because a sentencing court is statutorily mandated to impose these conditions,

see 18 U.S.C. § 3583(d), and these conditions are not unconstitutional. Special

Condition 1, requiring Davis to attend substance abuse treatment, Special Condition

6, requiring Davis to participate in a domestic violence program, and Special

Condition 9, prohibiting Davis from using or possessing alcohol, are also

constitutional because they are reasonably related to Davis’s criminal history, the

goals of deterrence, protecting the public, rehabilitation, and involve no greater

deprivation of liberty than reasonably necessary. See 18 U.S.C. § 3583(d)(1),

(2); see also Watson, 582 F.3d at 983.

Finally, we reject Davis’s argument that Standard Condition 12, which allows

a probation officer to require that Davis contact a person if the probation officer

determines that Davis poses a risk to that person, is unconstitutionally vague. We

previously discussed Standard Condition 12 with implicit approval. See United

States v. Evans, 883 F.3d 1154, 1164 (9th Cir. 2018). Any error in imposing this

condition therefore was not plain error because what error is now claimed was not

clear or obvious. United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003).

4 Because the challenged conditions of supervised release are not “illegal,” the

appeal waiver in his plea agreement applies.

DISMISSED.