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holding this condition is not impermissibly vague because defendants need not guess at the meaning
Summary of this case from United States v. MuñOpinion
No. 09-50231.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed April 19, 2011.
Michael J. Raphael, Esquire, Assistant U.S., Office of the U.S. Attorney, Los Angeles, CA, Joseph B. Widman, Assistant U.S., Office of the U.S. Attorney, Riverside, CA, for Plaintiff-Appellee.
Robert Stephen Hanna, Law Office of Michael Berger, Santa Barbara, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Central District of California, Virginia A. Phillips, District Judge, Presiding. D.C. No. 5:08-cr-00098-VAP-1.
Before: KOZINSKI, Chief Judge, D.W. NELSON and BYBEE, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
The district court expressly determined that "[t]he defendant's criminal history places him in criminal history category 5." In doing so, the court necessarily rejected Clarke's requests for downward departures and therefore complied with Federal Rule of Criminal Procedure 32. See United States v. Rogers, 119 F.3d 1377, 1384-85 (9th Cir. 1997) (finding that a district court complied with Rule 32 by implicitly resolving an objection to the PSR).
Clarke's challenges to two conditions of supervised release similarly fail. First, the condition requiring Clarke to "notify the probation officer within 72 hours of being arrested or questioned by a law enforcement officer" is not unconstitutionally vague because "men of common intelligence" needn't "guess at its meaning and differ as to its application." United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004). Second, the condition requiring Clarke to "permit a probation officer to visit him . . . at any time at home or elsewhere" is not unreasonable under the Fourth Amendment, see Samson v. California, 547 U.S. 843, 857, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), nor is it constitutionally overbroad or vague, or statutorily a "greater deprivation of liberty than is reasonably necessary," see United States v. Soltero, 510 F.3d 858, 865-67 (9th Cir. 2007).
In his plea agreement, Clarke waived his "right to appeal any sentence imposed by the Court, and the manner in which the sentence is determined" so long as he received a within or below Guidelines sentence. Because Clarke's 96-month sentence falls within the relevant Guidelines range, we don't consider his remaining arguments. See United States v. Jeronimo, 398 F.3d 1149, 1154 (9th Cir. 2005).