NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50240
Plaintiff-Appellee, D.C. No. 3:20-cr-02361-LAB-1 v.
MICHAEL LEE MAC CLEARY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding
Submitted April 21, 2023** Pasadena, California
Before: WARDLAW and KOH, Circuit Judges, and MCMAHON,*** District Judge.
Michael Lee Mac Cleary pleaded guilty to knowing importation of
methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. He was sentenced,
* 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 Colleen McMahon, United States District Judge for the Southern District of New York, sitting by designation. principally, to a term of 84 months incarceration and a five-year term of supervised
release that included—among other conditions—a digital search condition.
Alleging procedural and substantive errors in connection with his sentence, Mac
Cleary appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1
1. The district court did not procedurally err in its consideration of Mac
Cleary’s medical condition. Mac Cleary’s claim for procedural unreasonableness is
reviewed for abuse of discretion. 2 Although Mac Cleary received inadequate
medical care for his colostomy bag in the past, the district court’s conclusion that
he was getting adequate medical treatment in the Bureau of Prisons at the time of
sentencing was “plausible, rational, and based on the record; therefore, it [was] not
clearly erroneous.” See United States v. Graf, 610 F.3d 1148, 1158 (9th Cir. 2010)
(citing United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc)).
In particular, the note in Mac Cleary’s medical records concerning his colostomy
bag change—which mentions “ineffective health care maintenance”— refers to his
1 The parties are familiar with the facts of this case, so we include them only as necessary to resolve the appeal. 2 The government argues that the procedural errors Mac Cleary alleges are subject to plain error review because they were not raised below. See United States v. Burgum, 633 F.3d 810, 812 (9th Cir. 2011). However, it appears that Mac Cleary’s lawyer did not have a full opportunity to assert her objections, so plain error review is inappropriate. Fed. R. Crim. P. 51(b); United States v. Martinez, 850 F.3d 1097, 1100 n.1 (9th Cir. 2017).
2 previous issues with inadequate medical care but does not mention continued
inadequacy.
2. The district court properly considered Mac Cleary’s childhood abuse
when evaluating the 18 U.S.C. § 3553(a) sentencing factors. The presentence
report indicates that Mac Cleary had suffered sexual abuse, which the court
expressly recognized in considering Mac Cleary’s history and characteristics.
Given the nature and seriousness of the offense, Mac Cleary’s extensive criminal
record, and that his conviction was for the same offense as his previous conviction
(only two years prior), the district court did not abuse its discretion by not giving
“a lot of weight” to Mac Cleary’s abuse as a child. See United States v. Stoterau,
524 F.3d 988, 1001–1002 (9th Cir. 2008) (explaining that abuse a defendant
suffered as a child, along with other considerations, did not render 151-month
sentence unreasonable).
3. The district court did not impose a substantively unreasonable sentence.
Mac Cleary’s sentence is not “shockingly high,” and there is nothing illogical or
“otherwise unsupportable” about the district court’s 84-month sentence. See United
States v. Ressam, 679 F.3d 1069, 1088 (9th Cir. 2012) (en banc) (quoting United
States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)); see also Gallo v. United
States, 552 U.S. 38, 52 (2007) (“[T]hat the appellate court might reasonably have
3 concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.”).
Mac Cleary received a sentence at the low-end of the Sentencing Guidelines.
The district court expressly considered the range of sentencing factors, including
the nature and seriousness of the offense, as well as Mac Cleary’s history and
characteristics, and concluded that a within-Guidelines sentence was appropriate.
See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) (“[A]
Guidelines sentence will usually be reasonable.”) (internal quotation marks and
citations omitted). The offense was Mac Cleary’s sixth felony conviction and the
court found that it was part of a “pattern of continuing criminal activity” that was
“getting more serious.” Mac Cleary attempted to import distributable quantities of
methamphetamine twice in a span of two years, and he had not been deterred by a
lesser sentence.
4. The computer search condition in Mac Cleary’s written judgment is not
unlawful. Supervised release conditions are reviewed “deferentially, for abuse of
discretion.” United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006). Whether a
written judgment conflicts with an oral pronouncement of sentence is reviewed de
novo. United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006). Where a
district court’s oral pronouncement of sentence is “ambiguous,” the written
4 judgment controls to the extent that it clarifies that ambiguity. United States v.
Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974).
The district court stated at the hearing that Mac Cleary would be “subject to
search of his person, his property, his residence, and his vehicle by the probation
officer.” The court’s written judgement merely clarifies what “property” was
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-50240
Plaintiff-Appellee, D.C. No. 3:20-cr-02361-LAB-1 v.
MICHAEL LEE MAC CLEARY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding
Submitted April 21, 2023** Pasadena, California
Before: WARDLAW and KOH, Circuit Judges, and MCMAHON,*** District Judge.
Michael Lee Mac Cleary pleaded guilty to knowing importation of
methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. He was sentenced,
* 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 Colleen McMahon, United States District Judge for the Southern District of New York, sitting by designation. principally, to a term of 84 months incarceration and a five-year term of supervised
release that included—among other conditions—a digital search condition.
Alleging procedural and substantive errors in connection with his sentence, Mac
Cleary appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. 1
1. The district court did not procedurally err in its consideration of Mac
Cleary’s medical condition. Mac Cleary’s claim for procedural unreasonableness is
reviewed for abuse of discretion. 2 Although Mac Cleary received inadequate
medical care for his colostomy bag in the past, the district court’s conclusion that
he was getting adequate medical treatment in the Bureau of Prisons at the time of
sentencing was “plausible, rational, and based on the record; therefore, it [was] not
clearly erroneous.” See United States v. Graf, 610 F.3d 1148, 1158 (9th Cir. 2010)
(citing United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc)).
In particular, the note in Mac Cleary’s medical records concerning his colostomy
bag change—which mentions “ineffective health care maintenance”— refers to his
1 The parties are familiar with the facts of this case, so we include them only as necessary to resolve the appeal. 2 The government argues that the procedural errors Mac Cleary alleges are subject to plain error review because they were not raised below. See United States v. Burgum, 633 F.3d 810, 812 (9th Cir. 2011). However, it appears that Mac Cleary’s lawyer did not have a full opportunity to assert her objections, so plain error review is inappropriate. Fed. R. Crim. P. 51(b); United States v. Martinez, 850 F.3d 1097, 1100 n.1 (9th Cir. 2017).
2 previous issues with inadequate medical care but does not mention continued
inadequacy.
2. The district court properly considered Mac Cleary’s childhood abuse
when evaluating the 18 U.S.C. § 3553(a) sentencing factors. The presentence
report indicates that Mac Cleary had suffered sexual abuse, which the court
expressly recognized in considering Mac Cleary’s history and characteristics.
Given the nature and seriousness of the offense, Mac Cleary’s extensive criminal
record, and that his conviction was for the same offense as his previous conviction
(only two years prior), the district court did not abuse its discretion by not giving
“a lot of weight” to Mac Cleary’s abuse as a child. See United States v. Stoterau,
524 F.3d 988, 1001–1002 (9th Cir. 2008) (explaining that abuse a defendant
suffered as a child, along with other considerations, did not render 151-month
sentence unreasonable).
3. The district court did not impose a substantively unreasonable sentence.
Mac Cleary’s sentence is not “shockingly high,” and there is nothing illogical or
“otherwise unsupportable” about the district court’s 84-month sentence. See United
States v. Ressam, 679 F.3d 1069, 1088 (9th Cir. 2012) (en banc) (quoting United
States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)); see also Gallo v. United
States, 552 U.S. 38, 52 (2007) (“[T]hat the appellate court might reasonably have
3 concluded that a different sentence was appropriate is insufficient to justify
reversal of the district court.”).
Mac Cleary received a sentence at the low-end of the Sentencing Guidelines.
The district court expressly considered the range of sentencing factors, including
the nature and seriousness of the offense, as well as Mac Cleary’s history and
characteristics, and concluded that a within-Guidelines sentence was appropriate.
See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) (“[A]
Guidelines sentence will usually be reasonable.”) (internal quotation marks and
citations omitted). The offense was Mac Cleary’s sixth felony conviction and the
court found that it was part of a “pattern of continuing criminal activity” that was
“getting more serious.” Mac Cleary attempted to import distributable quantities of
methamphetamine twice in a span of two years, and he had not been deterred by a
lesser sentence.
4. The computer search condition in Mac Cleary’s written judgment is not
unlawful. Supervised release conditions are reviewed “deferentially, for abuse of
discretion.” United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006). Whether a
written judgment conflicts with an oral pronouncement of sentence is reviewed de
novo. United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006). Where a
district court’s oral pronouncement of sentence is “ambiguous,” the written
4 judgment controls to the extent that it clarifies that ambiguity. United States v.
Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974).
The district court stated at the hearing that Mac Cleary would be “subject to
search of his person, his property, his residence, and his vehicle by the probation
officer.” The court’s written judgement merely clarifies what “property” was
subject to search, including not only “residence” and “vehicle” (both of which
were mentioned at sentencing), but also “house” and “papers,” as well as
“computers” and “electronic or digital storage devices.” At most, the court’s oral
pronouncement is ambiguous about whether the word “property,” includes
computers and digital storage devices. See United States v. Allen, 157 F.3d 661,
668 (9th Cir. 1998) (“[An oral sentence] is ambiguous when it is capable of two or
more different constructions, both of which are reasonable.”). But “where there is
an ambiguity in the oral pronouncement of a sentence, [the] unambiguous written
judgment controls.” Fenner v. U.S. Parole Com’n, 251 F.3d 782, 787 (9th Cir.
2001); see also Green v. United States, 447 F.2d 987, 987 (9th Cir. 1971) (“That
the sentence in writing should be referred to in order to resolve ambiguities in the
oral pronouncement is well settled.”).
Mac Cleary alternatively argues that the district court erred in imposing the
computer search condition because the court did not articulate a nexus between the
search condition and the sentencing goals set forth at 18 U.S.C. § 3583(d). “The
5 law only requires some nexus between the computer search condition and
furthering ‘the goal of deterrence, protection of the public, or rehabilitation of the
offender.’” United States v. Bare, 806 F.3d 1011, 1019 (9th Cir. 2015) (quoting
United States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003)).
The search condition here applies only if “reasonable suspicion exists that
the offender has violated a condition of his supervision and that the areas to be
searched contain evidence of this violation,” and the supervised release conditions
are themselves designed to deter the defendant from further criminal conduct, to
protect the public, and to encourage defendant’s successful rehabilitation. See
United States v. King, 608 F.3d 1122, 1131 (9th Cir. 2010) (affirming a
reasonable-suspicion-based search condition as “reasonably related to protecting
the public and preventing recidivism”). Accordingly, the required nexus between
the search condition and the goals of probation is satisfied.
AFFIRMED.