883 F.3d 1154 (9th Cir. 2018), 16-10310, United States v. Evans
|Docket Nº:||16-10310, 16-10311|
|Citation:||883 F.3d 1154|
|Opinion Judge:||M. SMITH, Circuit Judge:|
|Party Name:||UNITED STATES of America, Plaintiff-Appellee, v. Anthony EVANS, Defendant-Appellant.|
|Attorney:||Shilpi Agarwal (argued) and Carmen Smarandoiu, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant-Appellant. Susan B. Gray (argued), Assistant United States Attorney; J. Douglas Wilson, Chie...|
|Judge Panel:||Before: MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges, and JOHN D. BATES, District Judge. IKUTA, Circuit Judge, dissenting:|
|Case Date:||February 28, 2018|
|Court:||United States Courts of Appeals, Court of Appeals for the Ninth Circuit|
Argued and Submitted December 5, 2017 San Francisco, California
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Northern District of California, Jeffrey S. White, District Judge, Presiding, C. Nos. 4:08-cr-00011-JSW, 4:16-cr-00012-JSW
Shilpi Agarwal (argued) and Carmen Smarandoiu, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Office of the Federal Public Defender, San Francisco, California; for Defendant-Appellant.
Susan B. Gray (argued), Assistant United States Attorney; J. Douglas Wilson, Chief, Appellate Division; Brian J. Stretch, United States Attorney; United States Attorneys Office, San Francisco, California; for Plaintiff-Appellee.
Before: MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges, and JOHN D. BATES,[*] District Judge.
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 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 certainty, the majority erroneously invalidates three standard conditions of supervised release that have been applied for three decades without giving rise to any confusion.
M. SMITH, Circuit Judge:
Anthony Evans appeals from the sentence imposed because of his conviction for being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). He also appeals the sentence imposed for violating the conditions of his supervised release in another case. Evans argues that the district court erred in applying a sentencing enhancement under the aggravated assault sentencing guideline, in imposing certain conditions of supervised release, and in failing to resolve Evanss factual objection to an allegation that he had violated his conditions of supervised release on another occasion. We vacate and remand in part, and affirm in part.
FACTUAL AND PROCEDURAL BACKGROUND
Surveillance camera footage shows that Evans was sitting in the passenger seat of a double-parked car on July 15, 2015, in the Bayview district of San Francisco when a man in a black sweatshirt approached and spoke to him. Evanss girlfriend, Jamellah Ali-Suluki, left the drivers seat of the car and walked out of the camera frame. The man in the black sweatshirt walked away and conferred with another man, who bent through the front passenger door of a neighboring blue car, and then began shooting at Evans.
After firing a number of shots, five of which struck Evans, the man appeared to pass something to the man in the black sweatshirt, and then fled. The man in the black sweatshirt closed the front passenger door of the blue car and looked toward Evans. When Evans got out of the passenger seat of his car, the man in the black sweatshirt fled down the sidewalk. Evans fired several shots at him. Ali-Suluki then returned to the car and drove Evans to the hospital.
In July of 2015, Evans was on supervised release for an earlier felony conviction. After the shooting, the Probation Office claimed that Evans had violated the terms of his supervised release by possessing a firearm, in violation of 18 U.S.C. § 922(g)(1). Separately, Evans was also charged with being a felon in possession of a firearm and ammunition in violation of the same statute. Evans pled guilty to the charge and admitted the corresponding supervised release violation. The Probation Office also alleged that Evans committed aggravated assault when he fired his weapon on July 15, and that he had previously violated the conditions of his supervised release by keeping a gun at his residence in April 2015. Evans denied both of these allegations.
At sentencing, the district court did not address the April 2015 allegation. Because of Evanss criminal history and the seriousness of possessing a firearm, the court sentenced Evans to the maximum two-year sentence for the supervised release violation, to be served consecutively to the courts sentence on the substantive charge. The district court heard argument on the felon-in-possession charge about whether Evans acted in self-defense when he fired shots at the man in the black sweatshirt. The court stated that it was faced with
an interesting legal paradigm here because normally in a situation like this ... I believe under state law, [the defendant] has the burden of proof of the affirmative defense.
But were not at a situation where— that situation. Were at a situation where this court has to stand here or sit here as an adjudicatory body to determine all in, is this a— an aggravated assault or one that is legally excused by virtue of a self-defense— a self-defense defense being made out by the facts in the case.
The court found that " the defendant did not initiate the shooting," but he did get out of the car and fire at " one of [his assailants] coconspirators," who was fleeing. Therefore, the court found that Evans had not acted in self-defense and sentenced him to 57 months of imprisonment followed by three years of supervised release subject to both standard and special conditions. Evanss attorney sought permission to address the supervised release conditions, but the court denied him permission to do so.
Evans timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
I. Aggravated Assault Sentencing Enhancement
In general, Sentencing Guideline § 2K2.1(a)(6) prescribes an offense level of 14 for the possession of a firearm by a prohibited person. However, pursuant to § § 2K2.1(c)(1)(A) and 2X1.1, if a defendant charged with unlawful possession of a firearm used the firearm in the commission of another offense, the guideline for that other offense applies if the resulting offense level is higher. When the other offense is an aggravated assault in which a firearm is discharged, the offense level under § 2A2.2(a) and (b)(2)(A) is 19.
The district court found that Evans used a firearm in the commission of an aggravated assault, and accordingly applied
§ 2A2.2(a) and (b)(2)(A). Evans argues here, as he did below, that the district courts finding was erroneous because he acted in self-defense. The underlying offense of assault is codified in California Penal Code § 240. California law provides that self-defense " negates culpability for assaultive crimes." People v. Adrian, 135 Cal.App.3d 335, 185 Cal.Rptr. 506, 510 (1982). We review the district courts factual findings for clear error. United States v. Christensen, 828 F.3d 763, 815 (9th Cir. 2015).
At the time Evans exited the car with his gun drawn, he had already been shot five times, and the surveillance video suggests the man he fired at was in league with the shooter. Nevertheless, when Evans began firing the man was already fleeing, and Evans continued firing at him as the man ran down the street. Based on its review of the security footage, the district court concluded that Evans did not reasonably believe it was necessary to shoot a fleeing man in order to defend himself, and we conclude that finding was not clearly erroneous.
Evans also asserts that the district courts finding was improper because it misapplied the burden of proof. It is not easy to discern where the court placed the burden of proof, but it did misstate California law when it noted that " under state law, [the defendant] has the burden of proof of the affirmative defense." In fact, California law places the...
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