United States v. Tom Malenya

736 F.3d 554, 407 U.S. App. D.C. 234, 2013 WL 6231565, 2013 U.S. App. LEXIS 24086
CourtCourt of Appeals for the D.C. Circuit
DecidedDecember 3, 2013
Docket19-1160
StatusPublished
Cited by21 cases

This text of 736 F.3d 554 (United States v. Tom Malenya) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Tom Malenya, 736 F.3d 554, 407 U.S. App. D.C. 234, 2013 WL 6231565, 2013 U.S. App. LEXIS 24086 (D.C. Cir. 2013).

Opinions

Opinion for the Court filed by Senior Circuit Judge WILLIAMS.

Dissenting opinion filed by Circuit Judge KAVANAUGH.

WILLIAMS, Senior Circuit Judge:

Tom Lusuli Malenya, a 41-year-old Army nurse, posted a personal ad on the “Men Seeking Men” section of Craig-slist.com. D.R., who was 14 at the time, responded to Malenya’s ad by e-mail and claimed to be an 18-year-old “twink”— someone who appears to be younger but who is actually an adult male between the ages of 18 and 23. Via text message, Malenya arranged for D.R. to come to his apartment, and the two had sex. A few weeks later, D.R.’s mother became concerned about the nature of D.R.’s relationship with Malenya and contacted the police. Using D.R.’s phone and pretending to be D.R., a detective sent a text message giving Malenya D.R.’s actual age and saying, “If your [sic] not cool its [sic] ok.” Malenya responded, via text message, “As long as you do not tell anyone is [sic] cool.” In another exchange of text messages the next day, Malenya arranged a second meeting at his apartment with D.R., and was arrested when a detective turned up instead of D.R.

In an information filed in the United States District Court for the District of Columbia, the United States charged Mal-enya with violations of 18 U.S.C. § 2422(b) and D.C.Code § 22-3010.02. Pursuant to a plea agreement, Malenya pled guilty to the D.C.Code violation. The court sentenced Malenya to a 36-month term of incarceration, suspended all but a year and a day, and imposed a 36-month term of supervised release subject to several special conditions. After sentencing, the government moved to dismiss the federal charge, and the court granted the motion.

Malenya’s objections to the conditions of supervised release are the sole merits subjects before us. We first address a couple of preliminary issues. On the merits, we find that the district court’s own statements, and the sweeping nature of several of the conditions, demonstrate that the court failed to weigh the burden of the conditions on Malenya’s liberty against their likely effectiveness, as required by 18 U.S.C. § 3583(d). We vacate the challenged conditions and remand the case to the district court to impose alternative conditions consistent with the governing statute.

Congress has granted the United States District Court for the District of Columbia jurisdiction over “[a]ny offense under any law applicable exclusively to the District of Columbia which offense is joined in the same information or indictment with any Federal offense.” District of Columbia Court Reorganization Act of 1970, Pub.L. No. 91-358, title I, § 111, 84 Stat. 477, 478 (codified at D.C.Code § 11-502). The information here included both the federal offense and D.C.Code violation, so the district court had jurisdiction over the latter.

Disposition of the federal offense after proper joinder does not withdraw power over the local offense, United States v. Kember, 685 F.2d 451, 454 (D.C.Cir.1982), but “when federal charges have faded from the case prior to trial,” the court has discretion to divest itself of jurisdiction, reviewable for abuse of discretion, id. at 454, 455. Due to variations in procedure and substance between the two systems, some hesitance to retain jurisdiction over a properly joined D.C.Code offense is in order once the federal charges have [557]*557“faded from the case.” Malenya, however, has not argued that the district court abused its discretion, and, because retention of a D.C.Code violation would not affect the district court’s power to hear the case even where retention of the case was an abuse of discretion, see id. at 454 (citing United States v. Kember, 648 F.2d 1354, 1359 (D.C.Cir.1980) (per curiam)), we need not raise the issue on our own.

In a footnote to its brief the government noted that § 11-502(3) does not explicitly address the district court’s attachment of conditions to a term of supervised release. Govt. Br. 16-17 n. 8. The government also pointed out that while in criminal cases in D.C. Superior Court the trial court sets the duration of any supervised release, it is the U.S. Parole Commission that imposes any conditions on that release. Compare D.C.Code § 24-403.01(b)(l-4) (duration), with D.C.Code § 24-403.01(b)(6) (conditions). We ordered the parties to brief the matter, and Malenya, while conceding that the district court could impose a sentence, including a term of supervised release, argued that its attachment of any conditions was error.

Given § ll-502(3)’s explicit grant of “jurisdiction of ... [a]ny offense under any law applicable exclusively to the District of Columbia” (so long as the joinder requirement has been met) (emphasis added), there seems little basis for any claim that the district court exceeded its jurisdiction in imposing conditions on supervised release. Accordingly, the issue is subject to normal rules of forfeiture. See United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002). As Malenya didn’t raise the issue until prompted by the government’s brief and our order, our review is only for “plain error” under Rule 52(b) of the Federal Rules of Criminal Procedure.

The error, if any, falls far short of satisfying the component of plain error review requiring that the error have been “clear or obvious, rather than subject to reasonable dispute.” Puckett v. United States, 556 U.S. 129, 135, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). The propriety of the district court’s sentencing Malenya at all must be inferred from the general grant of jurisdiction in D.C.Code § 11-502(3),. and, as defense counsel acknowledged, the same is true even for the court’s imposing a term of supervised release. Thus any claim that the- court’s imposition of conditions on that supervised' release is improper seems at least subject to reasonable dispute. Moreover, reading § 11-502(3) to allow the district court to attach conditions has the. appeal of avoiding the peculiar result that no one can impose conditions on the supervised release of a defendant sentenced under § 11^502(3). Finding the supposed error not to be clear enough to qualify as plain error, we will not review Malenya’s forfeited claim.

We start our review of the challenged conditions by setting them forth, as stated by the district court at sentencing, adding bracketed headings for convenience.

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736 F.3d 554, 407 U.S. App. D.C. 234, 2013 WL 6231565, 2013 U.S. App. LEXIS 24086, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-tom-malenya-cadc-2013.