United States v. Evans
| Decision Date | 28 February 2018 |
| Docket Number | Nos. 16-10310,16-10311,s. 16-10310 |
| Citation | 883 F.3d 1154 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Anthony EVANS, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
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 Attorney's Office, San Francisco, California; for Plaintiff-Appellee.
Before: MILAN D. SMITH, JR., and SANDRA S. IKUTA, Circuit Judges, and JOHN D. BATES,** District 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 Evans's 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. Evans's girlfriend, Jamellah Ali-Suluki, left the driver's 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.
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 assailant's] 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. Evans's 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.
ANALYSIS
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 court's 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).1 We review the district court's 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 court's 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 burden on the state to disprove self-defense beyond a reasonable doubt at a criminal trial. See Adrian , 185 Cal.Rptr. at 510. Evans does not argue that the "beyond a reasonable doubt" standard applied here. Instead, he recognizes that the government's burden was to disprove self-defense by a preponderance of the evidence, as is generally required when a party seeks to adjust the offense level at sentencing. See United States v. Charlesworth , 217 F.3d 1155, 1158 (9th Cir. 2000).
Although its remarks were somewhat ambiguous, the court may have based its conclusion on an objective view of the record without allocating burdens to either side.2 Even assuming, arguendo , that the district court failed to place the burden of proof on the government to disprove self-defense, however, the error was harmless. The surveillance video clearly showed that Evans opened fire on a fleeing man. Under the circumstances, any failure by the district court to properly assign the burden of proof did not affect its finding that Evans did not act in self-defense.
II. Conditions of Supervised Release
After serving his consecutive prison sentences for the violation of supervised release and the felon-in-possession charge, Evans will be placed on supervised release for three years, subject to numerous conditions. Evans challenges four of those conditions on various grounds. We generally review conditions of supervised release for abuse of discretion, but we review de novo claims that such conditions violate the Constitution. United States v. Watson , 582 F.3d 974, 981 (9th Cir. 2009).3 Evans argues that all of the challenged conditions are unconstitutionally vague. A condition of supervised release violates due process "if it either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application." UnitedStates v. Hugs , 384 F.3d 762, 768 (9th Cir. 2004) (quoting United States v. Loy , 237 F.3d 251, 262 (3d Cir. 2001) ).
A. Special Condition 5
Evans first argues that Special Condition 5, which imposed several gang-related constraints, was procedurally erroneous, substantively unreasonable, and unconstitutionally vague and overbroad. Special Condition 5 reads as follows:
The defendant shall not associate with any member of the Down Below Gang. The defendant shall have no connection whatsoever with the Down Below Gang or any other gang. If he is found to be in the company of such individuals or wearing the clothing, colors or insignia of the Down Below Gang, or any other gang, the court will presume that the association was for the purpose of participating in gang activities.
"On appeal, we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence." United States v. Carty , 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Evans asserts that the court's failure to adequately explain the choice of conditions is procedural...
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