United States v. Ryan Clarke

428 F. App'x 712

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 19, 2011
• Docket: 09-50231
• Status: Unpublished

Opinion

MEMORANDUM **

The district court expressly determined that “[t]he defendant’s criminal history places him in criminal history category 5.” In doing so, the court necessarily rejected Clarke’s requests for downward departures and therefore complied with Federal Rule of Criminal Procedure 32. See United States v. Rogers, 119 F.3d 1377, 1384-85 (9th Cir.1997) (finding that a district court complied with Rule 32 by implicitly resolving an objection to the PSR).

Clarke’s challenges to two conditions of supervised release similarly fail. First, the condition requiring Clarke to “notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer” is not unconstitutionally vague because “men of common intelligence” needn’t “guess at its meaning and differ as to its application.” United States v. Hugs, 384 F.3d 762, 768 (9th Cir.2004). Second, the condition requiring Clarke to “permit a probation officer to visit him ... at any time at home or elsewhere” is not unreasonable under the Fourth Amendment, see Samson v. California, 547 U.S. 843, 857, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), nor is it constitutionally overbroad or vague, or statutorily a “greater deprivation of liberty than is reasonably necessary,” see United States v. Soltero, 510 F.3d 858, 865-67 (9th Cir. 2007).

In his plea agreement, Clarke waived his “right to appeal any sentence imposed by the Court, and the manner in which the sentence is determined” so long as he received a within or below Guidelines sentence. Because Clarke’s 96-month sentence falls within the relevant Guidelines range, we don’t consider his remaining arguments. See United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir.2005).

AFFIRMED.

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