United States v. Kenneth McDonald, Jr.

516 F. App'x 645

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 22, 2013
• Docket: 12-10412
• Status: Unpublished

Opinion

MEMORANDUM **

Kenneth Henry McDonald, Jr. appeals from the district court’s revocation of supervised release and the nine-month sentence imposed upon revocation. We have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.

McDonald contends, and the government agrees, that the district court improperly delegated judicial authority by construing Standard Condition 3 to permit the probation officer to prohibit McDonald from possessing certain types of cell phones and images of minors. A district court may only “delegate to the probation officer the details of where and when the condition will be satisfied.” United States v. Stephens, 424 F.3d 876, 880 (9th Cir. 2005). Here, construing Standard Condition 3 to allow the probation officer to impose new substantive conditions was an improper delegation regarding the “primary decision” of what supervised release conditions should be imposed. See id. at 882. Accordingly, we vacate the judgment and remand for resentencing solely on the basis of McDonald’s violation of Special Condition 8.

VACATED and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.