United States v. Royal Hardy

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 13, 2019
• Docket: 18-10120
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 13 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10120

Plaintiff-Appellee, D.C. No. 1:02-cr-00133-HG-BMK-1 v.

ROYAL LAMARR HARDY, AKA MEMORANDUM* Royale LaMarr Sounet,

Defendant-Appellant.

Appeal from the United States District Court for the District of Hawaii Helen W. Gillmor, District Judge, Presiding

Submitted June 11, 2019** Honolulu, Hawaii

Before: THOMAS, Chief Judge, and CALLAHAN and CHRISTEN, Circuit Judges.

* 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). Defendant-Appellant Royal Lamarr Hardy appeals the district court’s

imposition of special conditions of supervised release. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm the district court.

1. We review for abuse of discretion the imposition of the special

condition regarding Hardy’s employment at Mana Medical Clinic (No. 19). See

United States v. Wolf Child, 699 F.3d 1082, 1089 (9th Cir. 2012). Pursuant to 18

U.S.C. § 3583(e)(2), the district court “may modify, reduce, or enlarge the

conditions of supervised release, at any time prior to the expiration or termination

of the term of supervised release” provided that the district court: (1) considers the

listed § 3553(a) factors; (2) abides by the relevant provisions of the Federal Rules

of Criminal Procedure; and (3) follows “the provisions applicable to the initial

setting of the terms and conditions of post-release supervision.” With respect to

this last requirement, initial conditions must: (1) be “reasonably related” to the

listed § 3553(a) factors; (2) “involve[ ] no greater deprivation of liberty than is

reasonably necessary to achieve” the goals of deterrence, protection of the public,

and defendant rehabilitation; and (3) be “consistent with any pertinent policy

statements issued by the Sentencing Commission[.]” 18 U.S.C. § 3583(d); see

United States v. Bainbridge, 746 F.3d 943, 951 (9th Cir. 2014). The district court

properly followed the requirements of 18 U.S.C. § 3583(e)(2) in modifying

2 Hardy’s conditions of supervised release to include the requirement that Hardy

“not be employed by or with Mana Medical Clinic.” Contrary to Hardy’s

assertions, the district court did not abuse its discretion in determining that Special

Condition No. 19 involved no greater deprivation of liberty than necessary to

achieve the goals of deterrence, protection of the public, and rehabilitation.

Hardy also contends that the district court committed procedural error

because: (1) the court relied on testimony from a probation officer who was not

under oath; and (2) there was no relation between the condition imposed and

Hardy’s supervised release violations. But the district court need not adhere to

stringent procedural requirements when imposing new conditions. Compare Fed.

R. Crim. P. 32.1(c) with Fed. R. Crim. P. 32.1(b); see, e.g., United States v. King,

608 F.3d 1122, 1130 (9th Cir. 2010) (holding that the imposition of new conditions

does not require an evidentiary hearing or a violation finding). Further, supervised

release conditions need not relate to specific violations or even to the offense of the

conviction as long as the conditions are reasonably related to the goals of

deterrence, protection of the public, or rehabilitation of the offender. See

Bainbridge, 746 F.3d at 952; United States v. Bare, 806 F.3d 1011, 1017 (9th Cir.

2015). The district court properly relied on evidence in the record and did not

abuse its discretion in imposing Special Condition No. 19.

3 2. Because Hardy failed to object to the imposition of the remaining

supervised release conditions that he now challenges on appeal (Nos. 11, 12, 14,

17, and 18), our review is limited to plain error. See Wolf Child, 699 F.3d at 1089.

“[T]he district court [generally] need not state at sentencing the reasons for

imposing each condition of supervised release, if it is apparent from the record.”

Bainbridge, 746 F.3d at 951 (second alteration in original) (footnote omitted)

(quoting United States v. Becker, 682 F.3d 1210, 1213 (9th Cir. 2012)). There is

ample evidence in the record that these employment-related conditions were no

greater than necessary to achieve the goals of deterrence, protection of the public,

and rehabilitation, particularly given Hardy’s extensive criminal history involving

tax and fraud crimes, Hardy’s actions with Mana Medical Clinic, Hardy’s

involvement with Royal Financial Solutions, and the third-party personal

information found in Hardy’s possession. The district court properly followed the

requirements of 18 U.S.C. § 3583(e)(2) and did not err in modifying Hardy’s

supervised release conditions to include these employment-related conditions.

AFFIRMED