United States v. Rudy Wahchumwah

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 27, 2017
• Docket: 16-30296
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUL 27 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-30296

Plaintiff - Appellee, D.C. No. 2:11-cr-02090-SMJ-1

v. MEMORANDUM*

RUDY LEE WAHCHUMWAH,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, District Judge, Presiding

Submitted July 14, 2017 ** Seattle, Washington

Before: FARRIS, MURPHY, *** and NGUYEN, Circuit Judges.

In 2012, Appellant Rudy Lee Wahchumwah was convicted of failing

to register as a sex offender under the Sex Offender Registration and

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See Fed. R. Appl P. 34(a)(2). *** The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S. Court of Appeals, Tenth Circuit, sitting by designation. Notification Act (“SORNA”), 18 U.S.C. § 2250. His sentence included

supervised release, one term of which prohibited him from unsupervised

contact with children under the age of 18 (the “no-contact condition”).

After Wahchumwah’s release from incarceration, he violated the no-contact

condition and the district court revoked his term of supervised release. The

court sentenced him to thirteen months’ imprisonment, twenty-three

months’ supervised release, and reimposed the no-contact condition.

1. Wahchumwah challenges the manner in which the no-contact

condition was imposed when he was sentenced for the SORNA conviction

in 2012, arguing the condition violated his due process rights by infringing

on his fundamental right of association with his own children and

grandchildren because the sentencing court imposed it without complying

with certain procedural protections. This court, however, has held that

“[a]n appeal challenging a probation revocation proceeding is not the

proper avenue through which to attack the validity of the original

sentence.” United States v. Gerace, 997 F.2d 1293, 1295 (9th Cir. 1993);

see also United States v. Castro-Verdugo, 750 F.3d 1065, 1068-69 (9th Cir.

2014); United States v. Simmons, 812 F.2d 561, 563 (9th Cir. 1987).

Wahchumwah’s due process claim is really a collateral attack on his 2012

-2- sentence. He must bring that attack in a 28 U.S.C. § 2255 motion. Castro-

Verdugo, 750 F.3d at 1071 (“Allowing a collateral attack on the underlying

sentence of probation in an appeal from a probation revocation proceeding

would . . . thwart Congress’ [one-year] statute of limitations for correcting

a sentence.”). Accordingly, we do not reach the merits of his argument.

2. Wahchumwah next argues the revocation of his supervised release

should be reversed because no rational trier of fact could have found he

knowingly violated the no-contact condition. When a defendant makes a

sufficiency-of-the-evidence challenge to a supervised release revocation,

this court must determine whether “viewing the evidence in the light most

favorable to the government, any rational trier of fact could have found the

essential elements of a violation by a preponderance of the evidence.”

United States v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir. 2007) (quotation

omitted). Having reviewed the record, we conclude Wahchumwah cannot

show the district court erred. The testimony of Wahchumwah’s probation

officer that Wahchumwah appeared to know the children were in his

kitchen and knew why they were there, is sufficient under the applicable

standard to prove Wahchumwah knowingly violated the no-contact

condition.

-3- 3. Wahchumwah’s challenge to his sentence for abuse of discretion is

also unavailing. This court has held that a district court must make special

evidentiary findings on the record before imposing a condition of

supervised release that restricts a parent’s “particularly significant liberty

interest” in contact with his own minor children. United States v. Wolf

Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (quotation omitted).

Wahchumwah did not assert that he currently had minor children and

neither this court nor the Supreme Court have held that a grandparent has a

liberty interest in associating with a grandchild. Cf. Mullins v. Oregon, 57

F.3d 789, 791, 794, 797 (9th Cir. 1995) (holding a biological connection

alone does not give a grandparent a “constitutionally protected liberty

interest” in the adoption of grandchildren). Thus, Wahchumwah cannot

show the district court abused its discretion by failing to make specific

findings before re-imposing the no-contact condition or by failing to hold

an evidentiary hearing on the issue.

4. Special conditions of supervised release “are permissible if they

are reasonably related to goals of deterrence, protection of the public, or

rehabilitation of the offender, taking into account the offender’s history and

personal characteristics, and involve no greater deprivation of liberty than

-4- is reasonably necessary for the purposes of supervised release.” United

States v. Goddard, 537 F.3d 1087, 1089 (9th Cir. 2008). As the district

court noted, Wahchumwah (1) was convicted of sexually abusing his own

child, (2) has repeatedly failed to register as a sex offender and (3) has

repeatedly violated the no-contact condition. He asserts, however, that the

district court committed plain error by failing to specifically address his

request that the court credit him for a twenty-four-month sentence he

served for a conviction that was later vacated. See United States v.

Wahchumwah, 472 F. App’x 623 (9th Cir. 2012) (unpublished disposition).

Applying the plain error standard to this question, we discern no error.

Before imposing the term of incarceration, the district court discussed

the relevant 18 U.S.C. § 3553(a) factors, including the deterrence factor

and Wahchumwah’s “history of not following the rules.” Because the

court’s reason for imposing the sentence is clear from the record, a detailed

explanation of why it rejected Wahchumwah’s over-incarceration argument

was not necessary. As the Supreme Court stated in Rita v. United States, in

conceptually simple cases where the context and the record make the

district court’s reasoning clear, the law does not require the court to

explicitly reject a defendant’s argument. 551 U.S. 338, 359 (2007). Thus,

-5- there is no merit to Wahchumwah’s assertion the district court committed

plain error when it failed to specifically address his sentencing argument.

Affirmed.

-6-