United States v. Wells

• Decision Date: 22 March 2022
• Docket Number: 19-10451
• Parties: United States Of America, Plaintiff-Appellee, v. Jonathan Wells, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

United States Of America, Plaintiff-Appellee, v. Jonathan Wells, Defendant-Appellant.

No. 19-10451

United States Court of Appeals, Ninth Circuit

March 22, 2022

Argued and Submitted October 18, 2021 San Francisco, California

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding D.C. No. 5:18-cr-00567-LHK-1

Leah Spero (argued), Spero Law Office, San Francisco, California Mara K. Goldman and Dejan M. Gantar, Assistant Federal Public Defenders; Steven G. Kalar, Federal Public Defender; Federal Public Defenders Office, San Jose, California; for Defendant-Appellant.

Merry Jean Chan (argued), Assistant United States Attorney, Chief Appellate Section, Criminal Division; David L. Anderson United States Attorney; United States Attorney's Office San Francisco, California; for Plaintiff-Appellee.

Before: J. Clifford Wallace, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

SUMMARY ^[*]

Criminal Law

The panel dismissed in part an appeal from the district court's judgment and order imposing sentence and conditions of supervised release, vacated the judgment in part, and remanded with instructions to the district court to clarify a special condition of supervised release to avoid a constitutional violation.

The panel wrote that because the language of the waiver of the right to appeal in the plea agreement is unambiguous, and the defendant knowingly and voluntarily waived the right to appeal, the panel was obligated to enforce the waiver and would not exercise the jurisdiction to review the merits of the appeal unless any exceptions to the appeal waiver apply.

Explaining that a waiver of the right to appeal does not bar a defendant from challenging an "illegal sentence," which has a very limited and precise meaning in this context, the panel observed that the defendant does not have any statutory basis for challenging the terms of his sentence as illegal. The panel declined to extend the meaning of an "illegal sentence" to encompass sentences that potentially violate 18 U.S.C. § 3583(d), which governs imposition of conditions of supervised release, and 18 U.S.C. § 3553, which sets forth factors to be considered in imposing a sentence.

In light of potential ambiguity in this court's caselaw regarding when an appeal-waiver exception based on constitutional challenges applies or on the scope of the exception, the panel attempted to clarify. Guided by United States v. Bibler, 495 F.3d 621 (9th Cir. 2007), and its progeny, the panel concluded that a waiver of the right to appeal a sentence does not apply if (1) the defendant raises a challenge that the sentence violates the Constitution; (2) the constitutional claim directly challenges the sentence itself; and (3) the constitutional challenge is not based on any underlying constitutional right that was expressly and specifically waived by the appeal waiver as part of a valid plea agreement. Following that precedent, the panel wrote that it must address the defendant's constitutional claims that directly challenge the terms of his supervised release, where the defendant waived his general right to appeal "any aspect" of his sentence but did not expressly waive any specific constitutional right. Except for the defendant's constitutional challenges to the terms of his supervised release, the panel enforced the waiver and dismissed the appeal.

The panel addressed on the merits the defendant's three constitutional challenges: (1) Special Condition No. 3 (computer ban) is unconstitutionally vague; (2) Special Condition No. 5 (internet ban) violates his First Amendment rights; and (3) both conditions are an unconstitutional delegation of authority because the conditions contain language that specify that the restrictions are subject to the approval of the probation officer.

The panel held that Special Condition No. 3, whose definition of "computer" potentially could be understood to encompass household objects, is unconstitutionally vague. The panel wrote that because Special Condition No. 3 violates a constitutional right, it is an "illegal" sentence and the waiver in the defendant's plea agreement does not bar the appeal. The panel declined to apply the appeal waiver, and exercised its jurisdiction to consider the issue. Because the condition is a fortiori unconstitutionally vague on the merits, the panel vacated and remanded with instructions for the district court to delineate explicitly that the prohibition only covers computers and computer-related devices that can access sexually explicit conduct.

Because the use of the internet was essential and integral to the offense of conviction, the receipt of child pornography, the panel rejected the defendant's First Amendment challenges to Special Condition No. 5. Because Special Condition No. 5 does not violate the Constitution, it is not an "illegal" sentence, and in light of waiver of the right to appeal, the panel dismissed the defendant's challenges to that condition.

As to the defendant's contention that Special Condition Nos. 3 and 5 unconstitutionally delegate authority to the probation officer, which the defendant did not argue in the district court, the panel wrote that it did not need to reach this issue because the special conditions are not manifestly unjust. It concluded that even considering the merits, the special conditions are not an unconstitutional delegation of authority.

Dissenting Judge Bea wrote that this case should be decided by the court sitting en banc because Bibler, 495 F.3d 621 (holding that an exception to valid appeal waivers exists if the appellant claims a violation of a constitutional right), and United States v. Joyce, 357 F.3d 921 (9th Cir. 2004) (dismissing an appeal based on a valid appeal wavier even though the defendant claimed his sentence violated his First Amendment rights), both control this case yet are entirely irreconcilable with one another.

OPINION

WALLACE, CIRCUIT JUDGE

Appellant Jonathan Wells appeals from the district court's judgment and order imposing sentence and conditions of supervised release. We have jurisdiction under 28 U.S.C. §§ 1291, 3742. We review de novo "[w]hether an appellant has waived his right to appeal" pursuant to the terms of a plea agreement, United States v. Joyce, 357 F.3d 921, 922 (9th Cir. 2004), and "[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). Because Wells has waived his right to appeal, we refuse to exercise jurisdiction over his claims-except for his constitutional violation claims-and we dismiss his appeal. However, we vacate in part and remand with instructions to the district court to clarify Special Condition No. 3 to avoid a constitutional violation.

I.

On April 28, 2016, police officers executed a search warrant for Wells' residence for evidence relating to possession of child pornography. Wells was subsequently arrested and interviewed by detectives, and he admitted to using peer-to-peer (P2P) applications to seek child pornography by means of keyword search for the past several years. Wells estimated he had downloaded approximately 20, 000 files of child pornography, which were stored in various computers and external hard drives. Officers also found 69 compact discs or digital file discs that included files of child pornography.

On November 27, 2018, Wells was charged with one count of receipt of child pornography in violation of 18 U.S.C. § 2252(a)(2), (b)(1). In a written plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(A)-(B), Wells pled guilty to the receipt of child pornography. He was sentenced to 76 months' imprisonment followed by five years of supervised release. In addition to the standard conditions of supervised release, the district court imposed 16 special conditions of supervised release. In this appeal, Wells challenges Special Condition Nos. 3 and 5. Special Condition No. 3 bans the possession and use of any computer without prior approval of the probation officer and Special Condition No. 5 bans the access to any internet or on-line computer service without approval of the probation officer.

II.

A.

We first turn to whether Wells knowingly and voluntarily waived the right to appeal the conditions of his supervised release. "A defendant's waiver of his appellate rights is enforceable if the language of the waiver encompasses his right to appeal on the grounds raised, and if the waiver was knowingly and voluntarily made." Joyce, 357 F.3d at 922-23 (citation omitted). "Plea agreements are contracts between a defendant and the government," which can contain a waiver of a defendant's right to appeal. Id. at 923 (citation omitted). Since "[p]lea agreements are contractual by nature and are measured by contract law standards," we "enforce the literal terms of the plea agreement" but generally "construe ambiguities in favor of the defendant." United States v. Franco-Lopez, 312 F.3d 984, 989 (9th Cir. 2002) (citations omitted). Thus, when the language of a plea agreement is clear and "[a]bsent some miscarriage of justice," we "will not exercise [the] jurisdiction to review the merits of [an] appeal if we conclude that [the defendant] knowingly and voluntarily waived the right to bring the appeal." United States v. Harris, 628 F.3d 1203, 1205 (9th Cir. 2011) (internal quotation marks and citations omitted).

In this case, the plea agreement language is clear. The plea agreement states: "I agree to give up my right to appeal the judgment and all orders of the Court. I also agree to give up my right to appeal any aspect of my sentence." Dist. Ct. Dkt. No. 10 ¶ 4. We have...