FILED
                           NOT FOR PUBLICATION
                                                                           JUN 17 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   18-10200

              Plaintiff-Appellee,                D.C. No.
                                                 4:16-cr-00538-JSW-1
 v.

DELAY GRAHAM,                                    MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeffrey S. White, District Judge, Presiding

                             Submitted June 13, 2019**
                              San Francisco, California

Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.

      Defendant Delay Graham appeals the district court’s imposition of a

condition of supervised release (special condition 2) which states that Graham

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Benita Y. Pearson, United States District Judge for the
Northern District of Ohio, sitting by designation.
“must not associate with any mem[ber] of the Ghost Town Gang, and must not

wear the clothing, colors, or insignia of the Ghost Town Gang.” We have

jurisdiction under 28 U.S.C. § 1291.

      Because Graham did not object to special condition 2 in the district court,

we review for plain error. See Puckett v. United States, 

, 135 (2009).

We have not held that a condition that prohibits contact with gang members, even

when the defendant’s sibling is a gang member, implicates a “particularly

significant liberty interest.” United States v. Wolf Child, 

, 1090 (9th

Cir. 2012). Therefore, the district court’s failure to make specific on-the-record

findings before imposing special condition 2 was not a “clear or obvious”

procedural error. United States v. De La Fuente, 

, 769 (9th Cir.

2003). Further, the district court did not commit a substantive error in imposing

the condition, because there is sufficient evidence that Graham was a member of

the Ghost Town Gang, and (even if he were not a member) prohibiting Graham

from associating with gang members furthers the statutory goals of deterring future

criminal conduct and protecting the public. See United States v. Evans, 

, 1161 (9th Cir. 2018).

      Finally, special condition 2 is not “so vague that it fails to provide people of

ordinary intelligence with fair notice of what is prohibited.” United States v. Sims,


                                          2


, 1260 (9th Cir. 2017). Given the evidence that Graham was a

member of the Ghost Town Gang, he is familiar with its members, clothing, colors,

and insignia. See United States v. Soltero, 

, 866–67 (9th Cir. 2007)

(per curiam). Further, because we construe the condition “consistent with

well-established jurisprudence under which we presume prohibited criminal acts

require an element of mens rea,” it does not reach unknowing or incidental

association with gang members. United States v. Vega, 

, 750 (9th Cir.

2008).

AFFIRMED.




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