582 F.3d 974 (9th Cir. 2009), 08-10385, United States v. Watson

Docket Nº:08-10385.
Citation:582 F.3d 974
Opinion Judge:CLIFTON, Circuit Judge:
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Deandre WATSON, Defendant-Appellant.
Attorney:Joseph P. Russoniello, United States Attorney, Barbara J. Valliere, William Frentzen, and Erika R. Frick (argued), Assistant United States Attorneys, San Francisco, CA, for the plaintiff-appellee. Scott A. Sugarman, Sugarman & Cannon, San Francisco, CA, for the defendant-appellant.
Judge Panel:Before: BARRY G. SILVERMAN, RICHARD R. CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.
Case Date:September 23, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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582 F.3d 974 (9th Cir. 2009)

UNITED STATES of America, Plaintiff-Appellee,


Deandre WATSON, Defendant-Appellant.

No. 08-10385.

United States Court of Appeals, Ninth Circuit.

September 23, 2009

         Argued and Submitted July 13, 2009.

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         Joseph P. Russoniello, United States Attorney, Barbara J. Valliere, William Frentzen, and Erika R. Frick (argued), Assistant United States Attorneys, San Francisco, CA, for the plaintiff-appellee.

          Scott A. Sugarman, Sugarman & Cannon, San Francisco, CA, for the defendant-appellant.

         Appeal from the United States District Court for the Northern District of California, William H. Alsup, District Judge, Presiding. D.C. No. CR-07-00336-WHA-2.

          Before: BARRY G. SILVERMAN, RICHARD R. CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.

          CLIFTON, Circuit Judge:

         Deandre Watson, who pled guilty to carjacking pursuant to a plea agreement containing a waiver of the right to appeal, challenges a condition of his supervised release barring him from entering San Francisco without the prior approval of his probation officer. He argues that the district court did not provide the necessary notice before issuing this condition and that the condition itself violates his " constitutional rights to travel and move, to freedom of association, to intimate association with his family and related rights."

          A waiver of the right to appeal does not bar a defendant from challenging an illegal sentence. We conclude, however, that the disputed supervised release condition directing Watson to stay out of San Francisco during the term of his supervised release unless he obtains permission from his probation officer is not unlawful. It is reasonably tied to the court's stated aims of rehabilitation and deterrence and is no more restrictive than reasonably necessary to serve those purposes. Nor do we find here any of the other circumstances that cause a waiver of appeal

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to be ineffective. The language of Watson's plea agreement waiver encompasses this appeal and the waiver was knowingly and voluntarily made given the circumstances surrounding the agreement. We accordingly dismiss the appeal.

         I. Background

         On the night of March 14, 2007, Watson and co-defendant Maurice Bibbs jumped into a rental car parked on a San Francisco street. Unfortunately, they were not the ones who had rented the car. The woman for whom the car had been rented noticed the men entering her car and approached them. Bibbs removed a handgun from his jacket and brandished it at the victim, who was seven months pregnant at the time. She fled and called the police. The responding officers reported that when they arrived at the scene the victim was sobbing uncontrollably, appearing to have been traumatized by the incident. Watson and Bibbs drove off, but they were apprehended in the rental car about an hour later. A firearm was recovered from the back seat.

         Watson and Bibbs were indicted for carjacking in violation of 18 U.S.C. § 2119 (Count One); and for using, carrying, and possessing a firearm in committing the crime of violence of carjacking in violation of 18 U.S.C. § 924(c)(1)(A) (Count Two). Bibbs was also indicted for tampering with a witness in violation of 18 U.S.C. § 1512(b)(1) (Count Three).

         Watson entered into a written plea agreement in which he pled guilty to Count One of the indictment. Watson agreed " that a reasonable and appropriate disposition of this case, under the Sentencing Guidelines and 18 U.S.C. § 3553(a), is as follows: 72 months imprisonment, 3 years of supervised release (with conditions to be fixed by the Court), no fine as I am unable to pay a fine, $100 special assessment and restitution to be determined by the Court." Watson further agreed " to give up my right to appeal my conviction(s), the judgment, and orders of the Court" and " to waive any right I may have to appeal any aspect of my sentence, including any orders relating to forfeiture and/or restitution." Watson also waived his right to bring any collateral attack on his conviction or sentence aside from a constitutional claim of ineffective assistance of counsel. Watson (and his attorney) confirmed that he had adequate opportunity to discuss the agreement with counsel and decided to enter the plea knowingly and voluntarily.

         The district court conducted the change of plea hearing on February 7, 2008, going over the sentence set forth in the plea agreement. In particular, the court reminded Watson that he must " report and live under certain strict conditions" while on supervised release. It stated that it could not determine the appropriate sentence, however, until it examined Watson's Presentence Report (PSR). The court reviewed the plea agreement's appellate waiver provision with Watson, reenforcing that he would be " giving up [his] right to take an appeal." Watson confirmed that he understood all of these consequences and the court accepted his guilty plea.

          The PSR noted Watson's " relative youth" and observed that it appeared he " did not plan the offense ahead of time, but made a rash, spur of the moment decision to go along with [Bibbs] and commit the instant offense." Watson's PSR included a statement from the case agent involved in the carjacking investigation that both Watson and Bibbs were members of the San Francisco " Eddy Rock" gang. The PSR also disclosed that Watson, who was only 19 at the time of sentencing, had already compiled a sorry record. He had been convicted in San Francisco as a juvenile for committing felony

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grand theft in September 2003 and misdemeanor burglary in July 2004. As a result, Watson was placed in a residential program from September 2004 until August 2005, when he left the facility without permission. Watson was soon placed in a different program, but was removed and transferred to yet another institution two months later after a court determined that he had committed misdemeanor battery against his roommate. He was released in September 2006 and returned to his mother's home in San Francisco. Less than three months later he was arrested in San Francisco for carrying a concealed weapon, carrying a loaded firearm, and obstructing/resisting arrest.1 Watson continued to live in his mother's home until his arrest for the current offense just six months after he was last released from custody.

         The PSR was no more encouraging about the support Watson received from his family or others around him, concluding that Watson " appears to have received minimal guidance from his parents or other adults in his life. It is noteworthy that despite witnessing the murder of his best friend at age 15, [Watson] has not been offered or received any mental health treatment, despite his ongoing involvement in the juvenile probation system." Watson's mother " indicated that [Watson] can come to live with her after [his] release, but that she is moving to Marin 2 in the next couple of weeks." However, even though he had lived most of his life with his mother, the PSR reported that Watson " stated that his mother did not show much interest in his well being," and " that he has had little contact with his mother since his arrest, and she has only visited him one time while in custody."

         During Watson's sentencing hearing on August 18, 2008, the court first accepted the plea agreement then imposed the prison sentence. The following exchange took place as the court announced the supervised release condition in question:

THE COURT: I am going to recommend-make it a condition that he not return to the city and county of San Francisco while on supervised release. He can live in this district, but not in San Francisco, because I see all-he'll be back in trouble again in three days. As soon as he-so he has to get a job and live in Oakland or live-if he's found again in San Francisco, he's going to go back into custody-unless it's with the permission of the probation officer.

MR. SUGARMAN [Watson's attorney]: Just so I understand and so he does [sic], you're saying he cannot going [sic] to anyplace in San Francisco?

THE COURT: Without prior permission on-while on supervised release. And the reason for that is a very good reason. I've seen this time and time again. Somebody comes out of prison. They go back to San Francisco. Within a week, they're back with the old guys and the old gang, and they are back in trouble. They got a gun. And then eventually, they get caught.

Now, living in Oakland may not be much better, but at least they make new friends. Maybe some of those are law-abiding friends.

And so I want to try this. I want you to be thinking about who he could live with over there that's a law-abiding relative-or it could be San Jose. I don't care where it is, as long as it's not the city and county of San Francisco.

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MR. SUGARMAN: I suggest, your Honor, respectfully, I think that order is overbroad.

It is one thing to say he should not associate with a list of people. It's one thing to even say, " You should not appear in certain neighborhoods." This incident occurred in one neighborhood he lived in.

Second, to say that he can't go anywhere in San Francisco-

THE COURT: Why does he have to come to San Francisco?

MR. SUGARMAN: His mother is hospitalized, as she was a few weeks ago, for, apparently, a stroke. And he wants to go to San Francisco General to visit her.

THE COURT: That would be okay. The probation officer-call him up. " Can I go see my mom? She's in the hospital."

Answer: Yes.

MR. SUGARMAN: He certainly has friends that are not criminally inclined. While some of them certainly were, I think that limits his travel; limits his right to petition for the redress of...

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