USA v. SOLTERO
The Ninth Circuit Court of Appeals today released an opinion in USA v. SOLTERO, No. 06-50257, a criminal appeal. The panel consisted of THOMAS G. NELSON, Eugene E. Siler, Jr., and Michael Daly Hawkins, Circuit Judges.
PER CURIAM:
Dean Harlon Soltero (”Soltero”) appeals the sentence imposed following his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He argues that the district court erred by failing to verify that he had read his presentence report (”PSR”) and had discussed it with his attorney, as well as by imposing three particular conditions of supervised release. We affirm in part, and vacate and remand in part. . . .
HAWKINS, Circuit Judge, concurring in part and dissenting in part:
I concur in all of the majority Opinion save that concerning the treatment condition (Section II.B), which, in my view, constitutes an impermissible delegation to the probation office. As I read 18 U.S.C. § 3672, only courts are permitted to decide whether, and to what extent, a defendant is required to pay for drug treatment costs. are also “gangs.” However, even if Soltero would only be prosecuted for a supervised release violation if he associated with disruptive gangs (and not if he associated with other arguably “disruptive groups“)–which, if true, would make the condition redundant and, thus, unnecessary for the government’s stated purposes–there is no way for Soltero to know this from the condition’s plain language. A probationer must be put on clear notice of what conduct will (and will not) constitute a supervised release violation, a rule that is of particular importance when the condition seems to reach constitutionally protected conduct. See United States v. Chapel, 428 F.2d 472, 473-74 (9th Cir. 1970). An overly broad condition like this one cannot be “saved” merely because the government promises to enforce it in a narrow manner. See United States v. Loy, 237 F.3d 251, 266 (3d Cir. 2001) (A vague supervised release condition “cannot be cured by allowing the probation officer an unfettered power of interpretation, as this would create one of the very problems against which the vagueness doctrine is meant to protect, i.e., the delegation of `basic policy matters to policemen . . . for resolution on an ad hoc and subjective basis.’ “); cf. Grayned v. City of Rockford, 408 U.S. 104, 109 (1972) (”[W]here a vague statute abuts upon sensitive areas of basic First Amendment freedoms, it operates to inhibit the exercise of those freedoms. Uncertain meanings inevitably lead citizens to steer far wider of the unlawful zone . . . than if the boundaries of the forbidden areas were clearly marked.” (internal quotation marks, alterations, citations, and footnotes omitted)). . . .