United States v. Anthony Evans

FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Nos. 16-10310 Plaintiff-Appellee, 16-10311 v. D.C. Nos. 4:08-cr-00011-JSW ANTHONY EVANS, 4:16-cr-00012-JSW Defendant-Appellant. Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding Argued and Submitted December 5, 2017 San Francisco, California Filed February 28, 2018 Before: MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges, and JOHN D. BATES, * District Judge. Opinion by Judge Milan D. Smith, Jr.; Dissent by Judge Ikuta * The Honorable John D. Bates, Senior District Judge for the United States District Court for the District of Columbia, sitting by designation. 2 UNITED STATES V. EVANS SUMMARY ** Criminal Law The panel affirmed a sentence for violating conditions of supervised release, vacated a sentence for being a felon in possession of a firearm, and remanded for the district court to correct conditions of supervised release. The panel held that the district court did not err in applying an enhancement under USSG § 2A2.2(a) and (b)(2)(A) for use of a firearm in the commission of an aggravated assault. The panel rejected most of the defendant’s challenges to supervised release Special Condition 5, which imposed several gang-related constraints, but the panel remanded for the district court to strike the final sentence, which explicitly removes the requirement that the government prove mens rea in a future revocation proceeding. The panel agreed with the defendant that three of his standard conditions of supervised release – which the Sentencing Commission has since amended to address their vagueness – are unconstitutionally vague. The panel remanded for the district court to remove the phrase “meet other family responsibilities” from Standard Condition 4. The panel remanded for the district court to remove an ambiguity in Standard Condition 5, which requires the defendant to work “regularly” at a lawful occupation. The panel remanded for the district court to modify Standard ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. EVANS 3 Condition 13 – which requires the defendant, as directed by the probation officer, to notify third parties of risks that may be occasioned by his criminal record or personal history or characteristics – in order to provide some determinate guidance to the defendant’s probation officer, as well as to the defendant. The panel did not need to decide whether it should read into Fed. R. Crim. P. 32.1 a requirement that a district court in a revocation proceeding resolve factual disputes or determine explicitly that such resolution is unnecessary. The panel held that any error by the district court in failing to resolve a disputed factual allegation made by the probation officer in the revocation proceeding was harmless. Dissenting as to Part II.B of the opinion, Judge Ikuta wrote that rather than follow the Supreme Court’s guidance that a statute is not unconstitutionally vague merely because it lacks mathematical ...

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