United States v. Dailey

• Citation: 941 F.3d 1183
• Decision Date: 04 November 2019
• Docket Number: No. 18-10134,18-10134
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-appellee, v. Jazzmin DAILEY, Aka Jazziee, Defendant-appellant.

941 F.3d 1183

UNITED STATES of America, Plaintiff-appellee,

v.Jazzmin DAILEY, Aka Jazziee, Defendant-appellant.

No. 18-10134

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 9, 2019 San Francisco, California

Filed November 4, 2019

Jaya C. Gupta (argued) and Kathleen Bliss, Kathleen Bliss Law PLLC, Henderson, California, for Defendant-Appellant.

Elham Roohani (argued), Assistant United States Attorney; Elizabeth O. White, Appellate Chief; Nicholas A. Trutanich, United States Attorney; United States Attorney’s Office, Las Vegas, Nevada; for Plaintiff-Appellee.

Before: Ronald M. Gould, Carlos T. Bea, and Michelle T. Friedland, Circuit Judges.

BEA, Circuit Judge:

Jazzmin Dailey pleaded guilty to violating 18 U.S.C. § 1952(a)(3)(A) ("the Travel Act") based on a June 2015 incident in which Dailey transported a minor across state lines for the purpose of having the minor engage in prostitution. Dailey was sentenced to three years of probation and ordered by the district court to register as a sex offender pursuant to the Sex Offender Registration and Notification Act ("SORNA"), 34 U.S.C. § 20901, et seq .

On appeal, Dailey makes three arguments challenging the legality of the condition requiring her to register as a sex offender. First, she argues the district court imposed an illegal sentence by requiring her to register as a sex offender because she was not convicted of a "sex offense." Next, she argues the district court did not provide her adequate pre-sentencing notice that she would be required to register as a sex offender under SORNA. And finally, she argues the district court delegated the Article III power to impose a criminal sentence by leaving the determination whether Dailey would be required to register as a sex offender to the probation office or state officials. For the reasons below, we reject all three arguments, conclude that the sentence was legally imposed, and dismiss the appeal based on the enforceable appellate waiver in Dailey’s plea agreement.

BACKGROUND

Dailey and her juvenile victim, T.B., were arrested on June 16, 2015, in an area of Las Vegas known for its high prostitution activity. When asked to produce identification, T.B. told the officer that she was 16 years old, and a subsequent records check revealed that T.B. was a missing juvenile from Chandler, Arizona. Dailey told investigators she believed T.B. was 20 years old.

T.B. later told a detective from the Child Exploitation Task Force that she had traveled from Arizona to Las Vegas to celebrate Dailey’s birthday as part of a four-person group with Dailey, another woman, and a 48-year-old male. T.B. had joined the group at the invitation of the third woman, and when the other woman and T.B. went to rendezvous with Dailey, they first met the male, who told them, "I have a girl coming, she’ll be the boss; she handles everything." Shortly thereafter, Dailey arrived in a rented car.

Dailey drove the group to a clothing store, where she purchased provocative, skimpy clothing for the women. While at the store, T.B. became aware that Dailey intended for T.B. to engage in prostitution once they arrived in Las Vegas. Dailey then drove the group to Las Vegas, instructing them on the unwritten rules of prostitution in the car. Among other things, Dailey instructed the women to "text a smiley face symbol to [her]" if they "[got] a trick." Dailey also rented a room at the Orleans Hotel and Casino for the women. Dailey secured a firearm in her room, and, according to T.B., Dailey told the women, "[i]f you get caught or say something about us, we’ll kill you."

In August 2015, a grand jury returned an indictment against Dailey. She was charged with one count of transportation of a minor for prostitution, in violation of 18 U.S.C. § 2423(a), (e) and one count of attempted sex trafficking of a minor, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2) and 1594(a), (b). Eventually, Dailey pleaded guilty to one count of violating the Travel Act, which criminalizes traveling in interstate commerce with the intent to commit an "unlawful activity." See 18 U.S.C. § 1952(a)(3). A variety of unlawful activities may trigger a violation of the Travel Act, none of which require that the unlawful activity involve a victim of minor age. See id. at § 1952(b).

However, in her plea agreement and during the plea colloquy, Dailey admitted that T.B. was a juvenile and that Dailey drove T.B. from Arizona to Nevada with the intent that T.B. would engage in prostitution. Dailey further admitted that she took steps to facilitate T.B.’s prostitution by instructing her in the rules of prostitution, purchasing provocative clothing, and renting a hotel room in Las Vegas. The plea agreement contained a notice that Dailey "may be required to register as a sex offender under the laws of the state of her residence." At the change of plea hearing, the government reiterated the plea agreement’s provision involving sex offender registration requirements under federal law. An additional provision in the plea agreement acknowledged that Dailey waived her right to appeal any sentence falling within the sentencing guideline range or "any other aspect of the conviction or sentence and any order of restitution or forfeiture."

After Dailey pleaded guilty, and prior to her sentencing hearing, the probation office prepared a presentence report (PSR) recommending Dailey be sentenced to 46 months imprisonment followed by three years of supervised release. The PSR also stated that while on supervised release Dailey "shall comply with ... the following mandatory condition[ ]":

5. You must comply with the requirements of the Sex Offender Registration and Notification Act ( 42 U.S.C. § 16901, et seq. ) as directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in which you reside, work, are a student, or were convicted of a qualifying offense.

Dailey did not object to the PSR.

The district court held Dailey’s sentencing hearing in March 2018. Announcing that she would "vary downward for [Dailey] and take a chance," the district judge sentenced Dailey to no imprisonment and three years of probation, citing her vulnerability, remorse, and otherwise good behavior. The district judge also stated the terms of Dailey’s probation would include the "standard and mandatory conditions of probation" from the PSR. The district court’s written judgment contained an identical provision to the PSR’s statement that Dailey "must comply with the requirements of the Sex Offender Registration and Notification Act (SORNA) as directed by" probation or state officials. Dailey was subsequently required to register as a sex offender in her state of residence, Arizona.

Dailey now appeals her sentence, arguing the district court erroneously required her to register as a sex offender. She also argues the district court failed to provide her adequate notice of the registration requirement before it sentenced her and that the court delegated its Article III powers to probation officials. Because Dailey challenges the legality of her sentence, she further argues she is not bound by the terms of the appellate waiver in her plea agreement.

STANDARD OF REVIEW

We review whether a defendant has waived her right to appeal de novo. United States v. Bibler , 495 F.3d 621, 623 (9th Cir. 2007).

We also review de novo "[w]hether a supervised release condition illegally exceeds the permissible statutory penalty or violates the Constitution," United States v. Watson , 582 F.3d 974, 981 (9th Cir. 2009), and the "adequacy of a district court’s notice of its intent to upwardly depart" from sentencing guidelines, United States v. Evans-Martinez , 530 F.3d 1164, 1167 (9th Cir. 2008). When a defendant does not make a timely objection at sentencing to the adequacy of the notice, however, the claim is reviewed for plain error. Id . Plain error is "(1) error, (2) that is plain, and (3) that affects substantial rights." United States v. Cotton , 535 U.S. 625, 631, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002) (citation, alteration, and internal quotation marks omitted). If those conditions are met, "an appellate court may exercise its discretion to notice a forfeited error that (4) ‘seriously affects the fairness, integrity, or public reputation of judicial proceedings.’ " United States v. Ameline , 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc) (quoting Cotton , 535 U.S. at 631, 122 S.Ct. 1781 ).

A district court’s imposition of probation conditions is reviewed for abuse of discretion. See United States v. Williams , 356 F.3d 1045, 1052 (9th Cir. 2004).

DISCUSSION

A.

At the outset, the government argues Dailey’s appeal is barred by the waiver in her plea agreement. There are, however, several exceptions to waivers of the right to appeal. "An appeal waiver will not apply if: 1) a defendant’s guilty plea failed to comply with [Federal Rule of Criminal Procedure] 11 ; 2) the sentencing judge informs a defendant that she retains the right to appeal; 3) the sentence does not comport with the terms of the plea agreement; or 4) the sentence violates the law." Bibler , 495 F.3d at 624. Among other things, a sentence that violates the law is a sentence "in excess of the permissible statutory penalty for the crime," United States v. Fowler , 794 F.2d 1446, 1449 (9th Cir. 1986), a category that includes unlawful probation conditions. See Watson , 582 F.3d at 987 (analyzing an allegedly unlawful condition of supervised release despite defendant’s appellate waiver).

Because the only potentially applicable exception here is that her "sentence violates the law" by imposing an unlawful probation condition, Dailey’s claim as to waiver rises and falls with her claim on the merits. If she is correct that her sentence violates the law, then her waiver is unenforceable. If she is incorrect, she has waived her right to appeal. Thus, we turn to the merits of her appeal to determine whether the waiver may be enforced.

B.

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