United States v. Parrel, 051514 FED9, 13-10310

Docket Nº:13-10310
Party Name:UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DALE G. PARREL, Defendant-Appellant.
Judge Panel:Before: RIPPLE, SILVERMAN, and GOULD, Circuit Judges.
Case Date:May 15, 2014
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff - Appellee,

v.

DALE G. PARREL, Defendant-Appellant.

No. 13-10310

United States Court of Appeals, Ninth Circuit

May 15, 2014

NOT FOR PUBLICATION

Submitted May 13, 2014 [**] San Francisco, California

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding D.C. No. 2:12-cr-00244-KJM-1

Before: RIPPLE, [***] SILVERMAN, and GOULD, Circuit Judges.

MEMORANDUM [*]

Defendant-Appellant Dale G. Parrel appeals his conviction and sentence under 38 C.F.R. § 1.218(a)(3) for the improper disposal of rubbish on property controlled by the Department of Veterans Affairs ("VA"). On appeal, Parrel challenges the constitutionality of the regulation as applied to him, arguing that it is void for vagueness. We review such challenges de novo. See United States v. Chhun, 744 F.3d 1110, 1116 (9th Cir. 2014); United States v. Albers, 226 F.3d 989, 993 (9th Cir. 2000). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

The regulation—which prohibits the "improper disposal of rubbish on property, " 38 C.F.R. § 1.218(a)(3)—uses language sufficiently clear to alert a person of "ordinary" intelligence that "improper disposal . . . is prohibited" and that discarding a cigarette butt on the ground, rather than in a trash can or ashtray, constitutes "improper disposal." See Kolender v. Lawson, 461 U.S. 352, 357 (1983). Because the regulation's language is clear, Parrel's argument that his conduct is excused by his reliance on environmental cues—including the presence of cigarette butts on the ground nearby—is unavailing. Further, Parrel had actual notice that his conduct was prohibited: Copies of the regulation were posted at every entrance to the hospital. And the citing officer explicitly told Parrel, upon seeing him flick his first cigarette butt to the ground, to use a trash receptacle in the future. Parrel disregarded that advice and adopted a confrontational style that provoked the officer to cite him.

Also, the regulation does not arm police with "unfettered discretion" to arrest people for "no more than vindicating affronts to police authority, " as Parrel argues. See Papachristou v. City of Jacksonville, 405 U.S. 156, 166-68 (1972). Rather, it permits citations only for those who (1) improperly dispose (2) of rubbish (3) on VA property. See 38 C.F.R....

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