Filed: Sep. 23, 2008
Latest Update: Mar. 02, 2020
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 07-50245 RAUL VEGA, a/k/a RAUL CAMPOS, D.C. No. RAUL VEGA CAMPOS, ROBERTO CR-06-00975-1- CAMPOS, CHUBS, LIL’ CHUBS, CAS LITTLE CHUBS, LIL’ CHUBBY, LIL OPINION CHUB, TRAVIESO, MIDGET, LIL’ BEAR, Defendant-Appellant. Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding Argued and Submitted June
Summary: FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. No. 07-50245 RAUL VEGA, a/k/a RAUL CAMPOS, D.C. No. RAUL VEGA CAMPOS, ROBERTO CR-06-00975-1- CAMPOS, CHUBS, LIL’ CHUBS, CAS LITTLE CHUBS, LIL’ CHUBBY, LIL OPINION CHUB, TRAVIESO, MIDGET, LIL’ BEAR, Defendant-Appellant. Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding Argued and Submitted June 2..
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 07-50245
RAUL VEGA, a/k/a RAUL CAMPOS, D.C. No.
RAUL VEGA CAMPOS, ROBERTO CR-06-00975-1-
CAMPOS, CHUBS, LIL’ CHUBS, CAS
LITTLE CHUBS, LIL’ CHUBBY, LIL
OPINION
CHUB, TRAVIESO, MIDGET, LIL’
BEAR,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
June 2, 2008—Pasadena, California
Filed September 24, 2008
Before: Alex Kozinski, Chief Judge, Dorothy W. Nelson and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Bea
13573
13576 UNITED STATES v. VEGA
COUNSEL
Sean K. Kennedy, Federal Public Defender, Kathryn A.
Young, Deputy Federal Public Defender, Los Angeles, Cali-
fornia, for the defendant-appellant.
Thomas P. O’Brien, United States Attorney, Christine C.
Ewell, Jeffrey A. Backhus, Assistant United States Attorneys,
Los Angeles, California, for the plaintiff-appellee.
OPINION
BEA, Circuit Judge:
Raul Vega appeals several conditions of supervised release
imposed by the district court after Vega pled guilty to know-
ing possession of a firearm in furtherance of a drug trafficking
crime, in violation of 18 U.S.C. § 924(c)(1)(A). The district
court sentenced Vega to a term of five years’ imprisonment
and three years’ supervised release.
First, Vega challenges the district court’s requirement he
abstain from alcohol during his three-year period of super-
vised release. Second, he challenges the requirement he per-
form twenty hours of community service per week when he
is not employed at least part-time or enrolled in an educa-
tional or vocational program. Third, Vega challenges the
requirement he not associate with any member of a criminal
street gang.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm the conditions of supervised release.1
1
We address Vega’s other contentions on appeal by separate memoran-
dum disposition.
UNITED STATES v. VEGA 13577
I.
On October 27, 2006, acting on a tip that Vega sold narcot-
ics, an undercover Los Angeles Police Department detective
called Vega and asked him if he would sell the detective a
“ball of crystal”—1/8 ounce of crystal methamphetamine.
Vega agreed, and met the detective in a Los Angeles parking
lot. The undercover detective approached Vega; Vega said he
had brought the methamphetamine but needed to go home and
weigh it. After Vega left the parking lot, officers stopped
Vega’s car and arrested him. During the search of the car,
officers recovered 10.7 net grams of methamphetamine and a
loaded .380 caliber semiautomatic pistol. The officers arrested
Vega for being a felon in possession of a firearm.
Vega and the government entered into a plea agreement,
the validity of which Vega does not challenge on appeal.
Vega agreed to plead guilty to a single count of knowing pos-
session of a firearm in furtherance of a drug trafficking crime
in violation of 18 U.S.C. § 924(c)(1)(A).
Vega waived his right to appeal his sentence, so long as the
sentence was for no longer than the statutory minimum of five
years. He retained the right to appeal certain conditions of
supervised release, including those he challenges in this
appeal.
After Vega pleaded guilty to the single count, the Probation
Office disclosed the presentence report (“PSR”). The PSR
described Vega’s extensive criminal history, beginning when
he was arrested for battery at the age of fourteen. Many of
Vega’s arrests occurred while he was with members of the
Harpys gang, to which he belonged since he was fifteen. The
PSR also described Vega’s numerous arrests between 2000
and 2006 for violations of an anti-gang injunction issued by
the Los Angeles County Superior Court that prohibited Vega
and other named gang members from associating with each
13578 UNITED STATES v. VEGA
other in public within a certain area. The PSR further noted
that Vega had a history of heroin abuse.
The Probation Office recommended a sentence of five
years, a term of three years’ supervised release, and a fine of
$900. It further recommended various conditions of super-
vised release, including:
3. The defendant shall participate in an outpatient
substance abuse treatment and counseling program
that includes urinalysis, saliva and/or sweat patch
testing, as directed by the Probation Officer. The
defendant shall abstain from using illicit drugs and
alcohol, and abusing prescription medications during
the period of supervision;
...
7. When not employed at least part-time and/or
enrolled in an educational or vocational program, the
defendant shall perform 20 hours of community ser-
vice per week as directed by the Probation Officer;
...
11. The defendant shall not associate with any
member of any criminal street gang or disruptive
group as directed by the Probation Officer, specifi-
cally, any member of the Harpys street gang.
The district court held Vega’s sentencing hearing on May
14, 2007. At Vega’s request, the district court waived the fine.
Also in response to Vega’s request, the district court struck
from condition 11 the term “disruptive groups” and added an
exception to allow Vega to associate with his brother, a mem-
ber of the Harpys gang. Thus, as imposed, condition 11 pro-
hibits Vega from associating with any member of any
criminal street gang as directed by the Probation Officer, spe-
UNITED STATES v. VEGA 13579
cifically any member of the Harpys street gang, with the
exception of Vega’s brother. The district court then imposed
a sentence of five years, and a three-year term of supervised
release. The district court imposed the conditions of super-
vised release recommended by the Probation Office, subject
only to the modification to condition 11.
Vega’s timely appeal followed.
II.
When the district court imposes a term of supervised
release, it must consider the factors set forth in 18 U.S.C.
§ 3553(a), which include among others: the nature and cir-
cumstances of the offense and history and characteristics of
the defendant; adequate deterrence to criminal conduct; pro-
tection of the public from further crimes of the defendant; and
the provision of training, medical care, or other correctional
treatment to the defendant. See 18 U.S.C. §§ 3553(a),
3583(c). The conditions must “involve[ ] no greater depriva-
tion of liberty than is reasonably necessary for the purposes
set forth” in the sentencing statute. 18 U.S.C. § 3583(d)(2).
We review conditions of supervised release properly chal-
lenged in the district court for abuse of discretion. United
States v. T.M.,
330 F.3d 1235, 1240 n.2 (9th Cir. 2003). “In
applying this standard of review, we give considerable defer-
ence to a district court’s determination of the appropriate
supervised release conditions, recognizing that a district court
has at its disposal all of the evidence, its own impressions of
a defendant, and wide latitude.” United States v. Stoterau,
524
F.3d 988, 1002 (9th Cir. 2008) (internal quotation marks and
citation omitted).
As to conditions not challenged in the district court, we
review such forfeited claims for plain error. United States v.
Maciel-Vasquez,
458 F.3d 994, 996 n.3 (9th Cir. 2006).
Before we will correct a forfeited error, there must be
13580 UNITED STATES v. VEGA
(1) error, (2) that is plain and (3) affects substantial rights.
Id.
“If all three conditions are met, an appellate court may then
exercise its discretion to notice a forfeited error, but only if
(4) the error seriously affects the fairness, integrity, or public
reputation of judicial proceedings.”
Id. (internal quotation
marks and citation omitted).
III.
Vega challenges condition 3, which requires him to abstain
from using alcohol during the three-year period of supervised
release. Because Vega raised his claim as to this supervised
release condition before the district court, we review for abuse
of discretion. See
T.M., 330 F.3d at 1240.
[1] Vega contends the alcohol abstention condition is unre-
lated to his relevant history. To the contrary, the record
reflects Vega has misused alcohol in the past. Vega admitted
to drinking at the age of fourteen. At age sixteen, he was
arrested at least twice for loitering with Harpys gang members
drinking beer. In 2006, Vega was ordered by a California state
court to attend Alcoholics Anonymous meetings weekly for
one year.2 Finally, there is a family history of alcohol abuse:
Vega’s father was an alcoholic who died of liver cirrhosis
when Vega was twelve, and Vega’s mother abused alcohol for
five years after his father’s death.
[2] Moreover, the alcohol abstention condition is reason-
ably related to the goal of furthering Vega’s rehabilitation.
2
After being found in contempt of court in February 2006 for violating
the anti-gang injunction, Vega was given probation and ordered to attend
Narcotics Anonymous meetings. In July 2006, probation was revoked and
then later reinstated with an order that Vega attend Alcoholics Anonymous
meetings. Although Vega contends this was merely a “venue” change for
the Narcotics Anonymous meetings, the district court reasonably could
conclude, based on the order to attend Alcoholics Anonymous, that Vega
had a history of alcohol abuse which a prior court had found required
counseling.
UNITED STATES v. VEGA 13581
Vega has a well-documented history of drug abuse as
reflected in the PSR, letters to the court from Vega’s friends
and family, and Vega’s request to the court for drug counsel-
ing. Vega and his friends and family told the district court
they thought his drug addiction led to the offense for which
he was here convicted. “[I]t is hardly a secret that there is a
tie between drug abuse and alcohol abuse.” United States v.
Brown,
235 F.3d 2, 6 (1st Cir. 2000) (upholding under plain
error review a condition that defendant abstain from alcohol
and all intoxicants because it was related to defendant’s his-
tory of alcohol abuse, to his drug offense because there is a
tie between drugs and alcohol, and to defendant’s goal of
remaining drug-free). A condition that requires Vega to stay
completely sober by prohibiting him from using any intoxicat-
ing substance—whether drugs or alcohol—is “part of an inte-
grated rehabilitative scheme.” United States v. Gementera,
379 F.3d 596, 606 n.13 (9th Cir. 2004); see also United States
v. Sales,
476 F.3d 732, 735-36 (9th Cir. 2007) (upholding
under plain error review an alcohol abstention condition
where defendant had no history of alcohol abuse and his
offense did not involve alcohol, but the record revealed a his-
tory of drug abuse and need for drug treatment).
[3] Vega has a history of drug abuse and misuse of alcohol,
he asked for drug treatment, and he claimed his offense was
caused by his drug addiction. Thus, the condition that Vega
stay completely sober and abstain from all intoxicating sub-
stances was reasonably related to Vega’s history and the goals
of rehabilitation and protection of the public. The district
court did not abuse its discretion when it imposed this condition.3
3
Contrary to Vega’s contention, his case is readily distinguishable from
United States v. Betts,
511 F.3d 872 (9th Cir. 2007), where we held a dis-
trict court abused its discretion when it imposed an alcohol abstention con-
dition where neither alcohol nor drugs played a role in the defendant’s
offense, the defendant had no history of alcohol or drug abuse, and the dis-
trict court expressly stated it imposed the condition in an effort to change
the public defender’s office policy of instructing defendants not to answer
probation officers’ questions about drugs and alcohol.
Id. at 879-80.
13582 UNITED STATES v. VEGA
IV.
Vega also challenges condition 7, which requires him to
perform twenty hours of community service per week, as
directed by the Probation Officer, when Vega is not employed
at least part-time or enrolled in an educational or vocational
program. Vega raised this claim before the district court;
accordingly, we review it for abuse of discretion. See
T.M.,
330 F.3d at 1240.
[4] We have not previously addressed a challenge to a con-
dition of supervised release that requires community service.
The Sentencing Guidelines, however, expressly provide that
“[c]ommunity service may be ordered as a condition of proba-
tion or supervised release.” U.S.S.G. § 5F1.3.4 We agree with
the Seventh Circuit that “the imposition of education, employ-
ment and community service conditions will further the statu-
tory goal of providing ‘the defendant with needed educational
or vocational training, medical care, or other correctional
treatment in the most effective manner.’ ” United States v.
McKissic,
428 F.3d 719, 724 (7th Cir. 2005) (quoting 18
U.S.C. § 3553(a)(2)(D)) (upholding on plain error review a
condition requiring the defendant to perform at least twenty
hours of community service per week as directed by the Pro-
bation Office until gainfully employed). Community service
is another opportunity for a defendant to obtain education and
vocational training.
Id. at 725.
[5] Moreover, Vega has a history of gang membership and
scattered employment. Condition 7 encourages Vega to use
4
The commentary to § 5F1.3 states, “[c]ommunity service generally
should not be imposed in excess of 400 hours” to avoid heavy administra-
tive burdens of selection of placements and monitoring of attendance. Nei-
ther the comment nor the Guidelines, however, prohibits the imposition of
more than 400 hours. In any event, whether Vega might have to perform
more than 400 hours of community service is speculative and will depend
on whether he is working or in a training program during his period of
supervised release.
UNITED STATES v. VEGA 13583
his time productively—in work, education, or community
service—rather than revert to gang activity. Thus, the condi-
tion is reasonably related to Vega’s rehabilitation, prevention
of recidivism, and protection of the public from future crimes.
Vega also contends the community service requirement is
“unreasonable under the circumstances.” Vega has worked in
the past as a day laborer. He contends that as a day laborer he
might have to spend hours waiting for work; if he is unsuc-
cessful in securing employment, he then will be compelled to
spend additional hours performing community service to
comply with this requirement. His fear is based on specula-
tion. Vega has held jobs other than day laborer. Moreover, the
condition applies only if Vega is not working “at least part-
time”; thus, it will not apply if Vega is successful in securing
work at least some of the time.
Accordingly, the district court did not abuse its discretion
when it imposed condition 7.5
V.
Finally, Vega challenges condition 11, which prohibits him
from association “with any member of any criminal street
gang as directed by the Probation Officer, specifically, any
member of the Harpys street gang.” Before the district court
Vega challenged only “the portion of the condition prohibit-
ing association with ‘disruptive groups’ ” and association with
his brother. Vega did not challenge those aspects of condition
11 he now challenges on appeal. Accordingly, we review
5
We reject Vega’s contention the district court abused its discretion by
failing to give a “justification” for the community service requirement. See
United States v. Betts,
511 F.3d 872, 876 (9th Cir. 2007) (“[A] sentencing
judge is not required to articulate on the record at sentencing the reasons
for imposing each condition of supervised release, where we can deter-
mine from the record whether the court abused its discretion.”) (footnote
and internal quotation marks omitted).
13584 UNITED STATES v. VEGA
these new claims for plain error. See United States v. Maciel-
Vasquez,
458 F.3d 994, 996 n.3 (9th Cir. 2006).
[6] A defendant “has a separate due process right to condi-
tions of supervised release that are sufficiently clear to inform
him of what conduct will result in his being returned to pris-
on.” United States v. Guagliardo,
278 F.3d 868, 872 (9th Cir.
2002) (per curiam). Vega contends condition 11 violates due
process because it uses the impermissibly vague terms: “asso-
ciate,” “any criminal street gang,” and “Harpys street gang.”
Vega’s contention is foreclosed by our decision in United
States v. Soltero,
510 F.3d 858 (9th Cir. 2007) (per curiam).
[7] In Soltero, we held the district court did not abuse its
discretion when it imposed the following condition, which is
nearly identical to condition 11: “The defendant shall not
associate with any known member of any criminal street gang
. . . as directed by the Probation Officer, specifically, any
known member of the Delhi street gang.”
Soltero, 510 F.3d
at 865. We held the term “associate” was not impermissibly
vague: “The Supreme Court has held that ‘incidental contacts’
—such as those Soltero fears he would be punished for inad-
vertently engaging in—do not constitute ‘association,’ . . . and
we hold that, with this limitation, ‘men of common intelli-
gence’ need not guess at the meaning of ‘association’ in the
context of” this condition.
Id. at 866-67 (internal citation
omitted).
[8] Further, we held the term “Delhi street gang” was “suf-
ficiently clear”: the district court was “entitled to presume that
Soltero—who has admitted to being a member of this gang—
is familiar with the Delhi gang’s members . . . .”
Id. at 866.
Here too the district court was entitled to presume Vega was
familiar with the Harpys street gang: there was ample undis-
puted evidence in the record that Vega had been a Harpys
member since at least 1995.
UNITED STATES v. VEGA 13585
[9] Finally, in Soltero we held the meaning of the term
“criminal street gang” was sufficiently clear: the term is
“slightly more ambiguous [than “Delhi street gang”]—but not
unconstitutionally so.”
Id. at 866. Moreover, “[a]lthough . . .
not crucial to our finding that the meaning of ‘criminal street
gang’ would be apparent to the average person,” we noted
that 18 U.S.C. § 521(a) defines “criminal street gang.”6
Id. at
866 n.8.
[10] Accordingly, under Soltero, the terms “associate,”
“any criminal street gang,” and “Harpys street gang,” in con-
dition 11 are not impermissibly vague.
As Vega correctly notes, however, the supervised release
condition in Soltero expressly stated the defendant shall not
associate with any known member of a criminal street gang,
whereas condition 11 here is not expressly limited to known
members. Vega contends he could face revocation of super-
vised release for unknowingly violating the condition by asso-
ciating with someone whom he does not realize is a member
of the Harpys or another criminal street gang.
[11] We construe condition 11 consistent with well-
established jurisprudence under which we presume prohibited
criminal acts require an element of mens rea. See Staples v.
6
18 U.S.C. § 521(a) defines “criminal street gang” as:
an ongoing group, club, organization, or association of 5 or more
persons—
(A) that has as 1 of its primary purposes the commission of 1
or more of the criminal offenses described in subsection (c) [e.g.,
felony involving controlled substance for which the maximum
penalty is not less than 5 years];
(B) the members of which engage, or have engaged within the
past 5 years, in a continuing series of offenses described in sub-
section (c); and
(C) the activities of which affect interstate or foreign com-
merce.
13586 UNITED STATES v. VEGA
United States,
511 U.S. 600, 605-06 (1994). Applying this
presumption, we read the condition to prohibit knowing asso-
ciation with members of a criminal street gang. See also
United States v. Johnson,
446 F.3d 272, 281 (2d Cir. 2006)
(“Generally, supervised release provisions are read to exclude
inadvertent violations.”). So construed, the condition is not
impermissibly vague.
Further,“[i]f and when [supervised release] is revoked, we
will examine the findings to insure that [defendant’s] due pro-
cess right to notice of prohibited conduct has been observed
and to protect him from unknowing violations.” United States
v. Romero,
676 F.2d 406, 407 (9th Cir. 1982) (rejecting as
premature defendant’s contention that a condition of proba-
tion that prohibited him from association with any person
convicted of any drug offense or who is unlawfully involved
with drugs was vague and overbroad because it might permit
revocation of probation for unknowing association).
AFFIRMED.