U.S. v. Gementera, No. 03-10103.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtO'Scannlain
Citation379 F.3d 596
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Shawn GEMENTERA, Defendant-Appellant.
Decision Date09 August 2004
Docket NumberNo. 03-10103.
379 F.3d 596
UNITED STATES of America, Plaintiff-Appellee,
v.
Shawn GEMENTERA, Defendant-Appellant.
No. 03-10103.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted May 11, 2004.
Filed August 9, 2004.

Page 597

Arthur K. Wachtel, San Francisco, CA, argued the case for the appellant and was on the briefs. Maitreya Badami was also on the briefs.

Kelley Brooke Snyder, U.S. Department of Justice, Washington, DC, argued the case for the appellee and was on the briefs. Kevin Ryan, United States Attorney, and Hannah Horsley and Anne-Christine Massullo, Assistant United States Attorneys, were also on the briefs.

Elizabeth M. Falk, Office of the Federal Public Defender, San Francisco, CA, argued the case for amicus curiae Federal Public Defender for the Northern District of California and was on the briefs. Barry J. Portman, Federal Public Defender, was also on the briefs.

Page 598

Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. CR-01-00454-VRW.

Before: O'SCANNLAIN, SILER, JR.,* and HAWKINS, Circuit Judges.

O'SCANNLAIN, Circuit Judge:


We must decide the legality of a supervised release condition that requires a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, "I stole mail. This is my punishment."

I

Shawn Gementera pilfered letters from several mailboxes along San Francisco's Fulton Street on May 21, 2001. A police officer who observed the episode immediately detained Gementera and his partner in crime, Andrew Choi, who had been stuffing the stolen letters into his jacket as Gementera anxiously kept watch. After indictment, Gementera entered a plea agreement pursuant to which he pled guilty to mail theft, see 18 U.S.C. § 1708, and the government dismissed a second count of receiving a stolen U.S. Treasury check. See 18 U.S.C. § 641.

The offense was not Gementera's first encounter with the law. Though only twenty-four years old at the time, Gementera's criminal history was lengthy for a man of his relative youth, and it was growing steadily more serious. At age nineteen, he was convicted of misdemeanor criminal mischief. He was twice convicted at age twenty of driving with a suspended license. At age twenty-two, a domestic dispute led to convictions for driving with a suspended license and for failing to provide proof of financial responsibility. By twenty-four, the conviction was misdemeanor battery. Other arrests and citations listed in the Presentence Investigation Report included possession of drug paraphernalia, additional driving offenses (most of which involved driving on a license suspended for his failure to take chemical tests), and, soon after his twenty-fifth birthday, taking a vehicle without the owner's consent.

On February 25, 2003, Judge Vaughn Walker of the United States District Court for the Northern District of California sentenced Gementera. The U.S. Sentencing Guidelines range was two to eight months incarceration; Judge Walker sentenced Gementera to the lower bound of the range, imposing two months incarceration and three years supervised release.1 He also imposed conditions of supervised release.

One such condition required Gementera to "perform 100 hours of community service," to consist of "standing in front of a postal facility in the city and county of San Francisco with a sandwich board which in large letters declares: `I stole mail. This is my punishment.'"2 Gementera later filed a motion to correct the sentence by

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removing the sandwich board condition. See Fed.R.Crim.P. 35(a).

Judge Walker modified the sentence after inviting both parties to present "an alternative form or forms of public service that would better comport with the aims of the court." In lieu of the 100-hour signboard requirement, the district court imposed a four-part special condition in its stead. Three new terms, proposed jointly by counsel, mandated that the defendant observe postal patrons visiting the "lost or missing mail" window, write letters of apology to any identifiable victims of his crime, and deliver several lectures at a local school.3 It also included a scaled-down version of the signboard requirement:

The defendant shall perform 1 day of 8 total hours of community service during which time he shall either (i) wear a two-sided sandwich board-style sign or (ii) carry a large two-sided sign stating, "I stole mail; this is my punishment," in front of a San Francisco postal facility identified by the probation officer. For the safety of defendant and general public, the postal facility designated shall be one that employs one or more security guards. Upon showing by defendant that this condition would likely impose upon defendant psychological harm or effect or result in unwarranted risk of harm to defendant, the public or postal employees, the probation officer may withdraw or modify this condition or apply to the court to withdraw or modify this condition.

On March 4, 2003, the court denied the Rule 35 motion and amended the sentence as described above. Gementera timely appealed.4

II

We first address Gementera's argument that the eight-hour sandwich

Page 600

board condition violates the Sentencing Reform Act.5 See 18 U.S.C. § 3583(d).

The Sentencing Reform Act affords district courts broad discretion in fashioning appropriate conditions of supervised release, while mandating that such conditions serve legitimate objectives. In addition to "any condition set forth as a discretionary condition of probation in section 3563(b)(1) through (b)(10) and (b)(12) through (b)(20)," the statute explicitly authorizes the court to impose "any other condition it considers to be appropriate." 18 U.S.C. § 3583(d)(emphasis added). Such special conditions, however, may only be imposed "to the extent that such condition —

(1) is reasonably related to the factors set forth in section 3553(a)(1), (a)(2)(B), (a)(2)(C), and (a)(2)(D);

(2) involves no greater deprivation of liberty than is reasonably necessary for the purposes set forth in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D); and

(3) is consistent with any pertinent policy statements issued by the Sentencing Commission pursuant to 28 U.S.C. 994(a)";

18 U.S.C. 3583(d). Thus, to comply with this requirement, any condition must be "reasonably related" to "the nature and circumstances of the offense and the history and characteristics of the defendant." See 18 U.S.C. 3553(a)(1). Moreover, it must be both "reasonably related" to and "involve no greater deprivation of liberty than is reasonably necessary" to "afford adequate deterrence to criminal conduct," see id. at 3553(a)(2)(B), "protect the public from further crimes of the defendant," see id. at 3553(a)(2)(C), and "provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner." See id. at 3553(a)(2)(D).6 Accordingly, the three legitimate statutory purposes of deterrence, protection of the public, and rehabilitation frame our analysis. E.g., United States v. Rearden, 349 F.3d 608, 618 (9th Cir.2003); United States v. T.M., 330 F.3d 1235, 1240 (9th Cir.2003).7

Within these bounds, we have recognized the flexibility and considerable discretion the district courts exercise to impose conditions of supervised release, up to and including limits upon the exercise of

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fundamental rights. See 18 U.S.C. § 3583(d) (granting authority to impose "any other condition it considers to be appropriate"); United States v. Hurt, 345 F.3d 1033, 1036 (9th Cir.2003) ("[T]he district court ... has wide discretion to act in the interest of the defendant and the public."); United States v. Bolinger, 940 F.2d 478, 480 (9th Cir.1991) ("The sentencing judge has broad discretion in setting probation conditions, including restricting fundamental rights."). This reflects, in part, their greater knowledge of and experience with the particular offenders before them. We have, for example, upheld conditions barring possession of sexually stimulating material, United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.1998), contact with minors, id., association or membership in "motorcycle clubs," Bolinger, 940 F.2d at 480, and access to the internet, Rearden, 349 F.3d at 620.

Of course, the district court's discretion, while broad, is limited — most significantly here, by the statute's requirement that any condition reasonably relate to a legitimate statutory purpose.8 "This test is applied in a two-step process; first, this court must determine whether the sentencing judge imposed the conditions for permissible purposes, and then it must determine whether the conditions are reasonably related to the purposes." United States v. Terrigno, 838 F.2d 371, 374 (9th Cir.1988). Gementera's appeal implicates both steps of the analysis.

A

Gementera first urges that the condition was imposed for an impermissible purpose of humiliation. See 18 U.S.C. § 3553(a). He points to certain remarks of the district court at the first sentencing hearing:

[H]e needs to understand the disapproval that society has for this kind of conduct, and that's the idea behind the humiliation. And it should be humiliation of having to stand and be labeled in front of people coming and going from a post office as somebody who has stolen the mail.

According to Gementera, these remarks, among others, indicate that the district court viewed humiliation as an end in itself and the condition's purpose.

Reading the record in context, however, we cannot but conclude that the district court's stated rationale aligned with permissible statutory objectives. At the second sentencing hearing, when the sentence was amended to what is now before us, the court explained: "[U]ltimately, the objective here is, one, to deter criminal conduct, and, number two, to rehabilitate the offender so that after he has paid his...

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53 practice notes
  • Commonwealth v. Melvin, Nos. 844 WDA 2013
    • United States
    • Superior Court of Pennsylvania
    • August 21, 2014
    ...(Tenn.1996) ; People v. Letterlough, 86 N.Y.2d 259, 631 N.Y.S.2d 105, 655 N.E.2d 146, 148–49 (1995) ; but see United States v. Gementera, 379 F.3d 596, 607 (9th Cir.2004). The broad discretion under subsection 9763(b)(15) to fashion creative conditions to county intermediate punishment to p......
  • HTH Corp. v. Nat'l Labor Relations Bd., Nos. 14–1222
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 20, 2016
    ...he was a lawbreaker. But fallen so low? Fallen to a condition that denies his autonomy? Cf. 823 F.3d 678 United States v. Gementera, 379 F.3d 596, 611 (9th Cir.2004) (Hawkins, J., dissenting) (saying that the sole purpose of a sentence requiring a convicted mail thief to stand outside a pos......
  • Fisher v. Kealoha, Civ. No. 11–00589 ACK–BMK.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Hawaii)
    • September 30, 2013
    ...Court declines to consider HDF's arguments because they were raised by an amicus, not an actual party to the case. See U.S. v. Gementera, 379 F.3d 596, 607–08 (9th Cir.2004) (9th Circuit declined to consider issues raised only by amicus and not an actual party) and Intermountain Fair Housin......
  • United States v. Kirilyuk, 19-10447
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • April 1, 2022
    ...(9th Cir. 2017) (en banc). We review whether a sentence exceeds the maximum term of imprisonment de novo. United States v. Gementera , 379 F.3d 596, 612 n.5 (9th Cir. 2004).II.Kirilyuk appeals his sentence on several grounds. In this opinion, we tackle three issues: (1) whether the district......
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  • Fed. Home Loan Mortg. Corp. v. SFR Invs. Pool 1, LLC, No. 16-15962
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • June 25, 2018
    ...succeeded. Id. Though noting that we generally do "not consider on appeal an issue raised only by an amicus," United States v. Gementera , 379 F.3d 596, 607 (9th Cir. 2004), we nevertheless rejected Amicus’ argument, stating: "The plain language of the section [12 U.S.C. § 4617(b)(19)(B) ] ......
  • Day v. Apoliona, No. 06-16625.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 7, 2007
    ...complaint was properly dismissed. "Generally, we do not consider on appeal an issue raised only by an amicus." United States v. Gementera, 379 F.3d 596, 607 (9th Cir.2004) (quoting Swan v. Peterson, 6 F.3d 1373, 1383 (9th Cir.1993)). Here, however, the issue addressed by the state is at the......
  • Commonwealth v. Melvin, Nos. 844 WDA 2013
    • United States
    • Superior Court of Pennsylvania
    • August 21, 2014
    ...(Tenn.1996) ; People v. Letterlough, 86 N.Y.2d 259, 631 N.Y.S.2d 105, 655 N.E.2d 146, 148–49 (1995) ; but see United States v. Gementera, 379 F.3d 596, 607 (9th Cir.2004). The broad discretion under subsection 9763(b)(15) to fashion creative conditions to county intermediate punishment to p......
  • HTH Corp. v. Nat'l Labor Relations Bd., Nos. 14–1222
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • May 20, 2016
    ...he was a lawbreaker. But fallen so low? Fallen to a condition that denies his autonomy? Cf. 823 F.3d 678 United States v. Gementera, 379 F.3d 596, 611 (9th Cir.2004) (Hawkins, J., dissenting) (saying that the sole purpose of a sentence requiring a convicted mail thief to stand outside a pos......
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