U.S. v. Vega

• Decision Date: 24 September 2008
• Docket Number: No. 07-50245.,07-50245.
• Citation: 545 F.3d 743
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raul VEGA, a/k/a Raul Campos, Raul Vega Campos, Roberto Campos, Chubs, Lil' Chubs, Little Chubs, Lil' Chubby, Lil Chub, Travieso, Midget, Lil' Bear, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

545 F.3d 743

UNITED STATES of America, Plaintiff-Appellee, v. Raul VEGA, a/k/a Raul Campos, Raul Vega Campos, Roberto Campos, Chubs, Lil' Chubs, Little Chubs, Lil' Chubby, Lil Chub, Travieso, Midget, Lil' Bear, Defendant-Appellant.

No. 07-50245.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 2, 2008.

Filed September 24, 2008.

Sean K. Kennedy, Federal Public Defender, Kathryn A. Young, Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.

Thomas P. O'Brien, United States Attorney, Christine C. Ewell, Jeffrey A. Backhus, Assistant United States Attorneys, Los Angeles, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Central District of California; Christina A. Snyder, District Judge, Presiding. D.C. No. CR-06-00975-1-CAS.

Before: ALEX KOZINSKI, Chief Judge, D.W. NELSON and CARLOS T. BEA, Circuit Judges.

BEA, Circuit Judge:

Raul Vega appeals several conditions of supervised release imposed by the district court after Vega pled guilty to knowing possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c)(1)(A). The district court sentenced Vega to a term of five years' imprisonment and three years' supervised release.

First, Vega challenges the district court's requirement he abstain from alcohol during his three-year period of supervised release. Second, he challenges the requirement he perform twenty hours of community service per week when he is not employed at least part-time or enrolled in an educational or vocational program. Third, Vega challenges the requirement he not associate with any member of a criminal street gang.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm the conditions of supervised release.¹

I.

On October 27, 2006, acting on a tip that Vega sold narcotics, an undercover Los Angeles Police Department detective called Vega and asked him if he would sell the detective a "ball of crystal" — 1/8 ounce of crystal methamphetamine. Vega agreed, and met the detective in a Los Angeles parking lot. The undercover detective approached Vega; Vega said he had brought the methamphetamine but needed to go home and weigh it. After Vega left the parking lot, officers stopped Vega's car and arrested him. During the search of the car, officers recovered 10.7 net grams of methamphetamine and a loaded .380 caliber semiautomatic pistol. The officers arrested Vega for being a felon in possession of a firearm.

Vega and the government entered into a plea agreement, the validity of which Vega does not challenge on appeal. Vega agreed to plead guilty to a single count of knowing possession of a firearm in furtherance of a drug trafficking crime in violation of 18 U.S.C. § 924(c)(1)(A).

Vega waived his right to appeal his sentence, so long as the sentence was for no longer than the statutory minimum of five years. He retained the right to appeal certain conditions of supervised release, including those he challenges in this appeal.

After Vega pleaded guilty to the single count, the Probation Office disclosed the presentence report ("PSR"). The PSR described Vega's extensive criminal history, beginning when he was arrested for battery at the age of fourteen. Many of Vega's arrests occurred while he was with members of the Harpys gang, to which he belonged since he was fifteen. The PSR also described Vega's numerous arrests between 2000 and 2006 for violations of an anti-gang injunction issued by the Los Angeles County Superior Court that prohibited Vega and other named gang members from associating with each other in public within a certain area. The PSR further noted that Vega had a history of heroin abuse.

The Probation Office recommended a sentence of five years, a term of three years' supervised release, and a fine of $900. It further recommended various conditions of supervised release, including:

3. The defendant shall participate in an outpatient substance abuse treatment and counseling program that includes urinalysis, saliva and/or sweat patch testing, as directed by the Probation Officer. The defendant shall abstain from using illicit drugs and alcohol, and abusing prescription medications during the period of supervision;

...

7. When not employed at least part-time and/or enrolled in an educational or vocational program, the defendant shall perform 20 hours of community service per week as directed by the Probation Officer;

...

11. The defendant shall not associate with any member of any criminal street gang or disruptive group as directed by the Probation Officer, specifically, any member of the Harpys street gang.

The district court held Vega's sentencing hearing on May 14, 2007. At Vega's request, the district court waived the fine. Also in response to Vega's request, the district court struck from condition 11 the term "disruptive groups" and added an exception to allow Vega to associate with his brother, a member of the Harpys gang. Thus, as imposed, condition 11 prohibits Vega from associating with any member of any criminal street gang as directed by the Probation Officer, specifically any member of the Harpys street gang, with the exception of Vega's brother. The district court then imposed a sentence of five years, and a three-year term of supervised release. The district court imposed the conditions of supervised release recommended by the Probation Office, subject only to the modification to condition 11.

Vega's timely appeal followed.

II.

When the district court imposes a term of supervised release, it must consider the factors set forth in 18 U.S.C. § 3553(a), which include among others: the nature and circumstances of the offense and history and characteristics of the defendant; adequate deterrence to criminal conduct; protection of the public from further crimes of the defendant; and the provision of training, medical care, or other correctional treatment to the defendant. See 18 U.S.C. §§ 3553(a), 3583(c). The conditions must "involve[ ] no greater deprivation of liberty than is reasonably necessary for the purposes set forth" in the sentencing statute. 18 U.S.C. § 3583(d)(2).

We review conditions of supervised release properly challenged in the district court for abuse of discretion. United States v. T.M., 330 F.3d 1235, 1240 n. 2 (9th Cir.2003). "In applying this standard of review, we give considerable deference to a district court's determination of the appropriate supervised release conditions, recognizing that a district court has at its disposal all of the evidence, its own impressions of a defendant, and wide latitude." United States v. Stoterau, 524 F.3d 988, 1002 (9th Cir.2008) (internal quotation marks and citation omitted).

As to conditions not challenged in the district court, we review such forfeited claims for plain error. United States v. Maciel-Vasquez, 458 F.3d 994, 996 n. 3 (9th Cir.2006). Before we will correct a forfeited error, there must be (1) error, (2) that is plain and (3) affects substantial rights. Id. "If all three conditions are met, an appellate court may then exercise its discretion to notice a forfeited error, but only if (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. (internal quotation marks and citation omitted).

III.

Vega challenges condition 3, which requires him to abstain from using alcohol during the three-year period of supervised release. Because Vega raised his claim as to this supervised release condition before the district court, we review for abuse of discretion. See T.M., 330 F.3d at 1240.

Vega contends the alcohol abstention condition is unrelated to his relevant history. To the contrary, the record reflects Vega has misused alcohol in the past. Vega admitted to drinking at the age of fourteen. At age sixteen, he was arrested at least twice for loitering with Harpys gang members drinking beer. In 2006, Vega was ordered by a California state court to attend Alcoholics Anonymous meetings weekly for one year.² Finally, there is a family history of alcohol abuse: Vega's father was an alcoholic who died of liver cirrhosis when Vega was twelve, and Vega's mother abused alcohol for five years after his father's death.

Moreover, the alcohol abstention condition is reasonably related to the goal of furthering Vega's rehabilitation. Vega has a well-documented history of drug abuse as reflected in the PSR, letters to the court from Vega's friends and family, and Vega's request to the court for drug counseling. Vega and his friends and family told the district court they thought his drug addiction led to the offense for which he was here convicted. "[I]t is hardly a secret that there is a tie between drug abuse and alcohol abuse." United States v. Brown, 235 F.3d 2, 6 (1st Cir.2000) (upholding under plain error review a condition that defendant abstain from alcohol and all intoxicants because it was related to defendant's history of alcohol abuse, to his drug offense because there is a tie between drugs and alcohol, and to defendant's goal of remaining drug-free). A condition that requires Vega to stay completely sober by prohibiting him from using any intoxicating substance — whether drugs or alcohol — is "part of an integrated rehabilitative scheme." United States v Gementera, 379 F.3d 596, 606 n. 13 (9th Cir.2004); see also United States v. Sales, 476 F.3d 732, 735-36 (9th Cir.2007) (upholding under plain error review an alcohol abstention condition where defendant had no history of alcohol abuse and his offense did not involve alcohol, but the record revealed a history of drug abuse and need for drug treatment).

Vega has a history of drug abuse and misuse of alcohol, he asked for drug treatment, and he claimed his offense was caused by his drug addiction. Thus, the condition that Vega stay completely sober and abstain from all intoxicating substances was reasonably related to Vega's history and the goals of...