USA v. Bahe
| Decision Date | 10 January 2000 |
| Docket Number | No. 99-10014,99-10014 |
| Citation | 201 F.3d 1124 |
| Parties | (9th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. EDWARD BAHE, Defendant-Appellant. Office of the Circuit Executive |
| Court | U.S. Court of Appeals — Ninth Circuit |
COUNSEL: Jon M. Sands, Assistant Federal Public Defender, Phoenix, Arizona, for the defendant-appellant.
Elizabeth D. Collery, (argued) and Louis M. Fischer, (brief), United States Department of Justice, Washington, D.C., for the plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona Roslyn O. Silver, District Judge, Presiding, D.C. No. CR-98-00606-ROS
Before: Harry Pregerson and Charles Wiggins, Circuit Judges, and David O. Carter, District Judge.1
This appeal arises from a clerical error in one part of 18 U.S.C. S 3583(d), the statute that authorizes a district court to impose discretionary conditions of supervised release following imprisonment. See 18 U.S.C. S 3583(d). In so authorizing a district court, S 3583(d) refers to certain subsections of 18 U.S.C. S 3563(b), the statute that authorizes the discretionary imposition of conditions of probation. Section 3583(d) specifically refers to S 3563(b)(1) through (b)(10) and (b)(12) through (b)(20). Conspicuously absent is a reference to subsection (b)(11).
Appellant Edward Bahe argues for the first time on appeal that the absence of any reference to subsection (b)(11) in S 3583(d) signifies Congress's express intent to deny a district court the authority to impose confinement in a community treatment center or halfway house for rehabilitative purposes as a condition of supervised release. Our analysis of the language of the statute, its legislative history, relevant precedent, and the applicable Sentencing Guidelines lead us to the conclusion that Bahe is mistaken.
The absence of a reference in S 3583(d) to the subsection of S 3563(b) that authorizes community confinement for rehabilitative purposes was an inadvertent clerical error made twelve years after the enactment of S 3583(d). The clerical error was the result of the complex drafting process involved in enacting the Mandatory Victims Restitution Act of 1996 (MVRA). The MVRA made changes to S 3563(b), not to S 3583(d). Because the literal application of this clerical error in S 3583(d) "will produce a result demonstrably at odds with the intentions of its drafters," United States v Ron Pair Enterprises, Inc., 489 U.S. 235, 242 (1989), it cannot control the meaning of the statute. Therefore, it does not signify that a district court lacks the authority to impose confinement in a community treatment center or halfway house for rehabilitative purposes as a condition of supervised release following imprisonment. Indeed, the legislative history establishes that Congress unambiguously intended that a district court have such authority.
Here, Bahe was sentenced to fifteen months imprisonment followed by up to one year of supervised release at a community correction facility for rehabilitative treatment. The district court imposed this sentence after Bahe pled guilty to two counts of abusive sexual conduct involving two of his mentally disabled female grandchildren entrusted to his care. The court concluded that confinement in a community treatment center was necessary to ensure that Bahe received treatment for his sexual deviancy. Because we hold that the district court had the authority pursuant to 18 U.S.C. S 3583(d) to impose community confinement for rehabilitative purposes as a condition of Bahe's supervised release, we affirm Bahe's sentence.2
Bahe, a 60-year-old Navajo, was charged with sexually abusing two of his female grandchildren entrusted to his care. At the time of Bahe's arrest, the children were fourteen and sixteen years of age and mentally disabled because of fetal alcohol syndrome. On September 16, 1998, Bahe pled guilty to violating 18 U.S.C. SS 1153, 2244(a)(3), and 2245 as charged. "The probation office in the Presentence Report recommended that Bahe be sentenced to fifteen to twenty-one months in prison, followed by up to one year of supervised release at a community treatment facility so that he could be treated for his sexual deviancy.
At sentencing, the district court accepted the parties' plea agreement. The plea agreement provided, inter alia, that after imprisonment Bahe would serve a term of supervised release pursuant to the Sentencing Reform Act of 1984 and the relevant Sentencing Guidelines. It also provided that Bahe waived his right to appeal or collaterally attack "any matter pertaining to this prosecution and sentence if the sentence imposed is consistent with the terms of this agreement." During a colloquy with the court, Bahe acknowledged his waiver of appeal, but subsequently at sentencing, through counsel, asserted that it would not apply if the court imposed an illegal sentence.
Also at sentencing, Bahe asked for a downward departure because of his physical and mental conditions, his illiteracy, and his ability to speak Navajo only. The district court declined a downward departure, but did sentence him to fifteen months imprisonment, which was at the low end of the guideline range. In addition to Bahe's term of imprisonment, the court adopted the probation office's recommendation and imposed community confinement in a halfway house for rehabilitative purposes as a condition of Bahe's supervised release for up to one year or until discharged by the probation officer pursuant to its authority under U.S. SENTENCING GUIDELINES Manual (U.S.S.G.) S 5.D1.3 ("Conditions of Supervised Release"), S 5.F1.1 ("Community Confinement"), and 18 U.S.C. S 3583(d). The court stated that it imposed this condition "to facilitate treatment for sexual deviance" on the basis of its finding that the abusive conduct had "gone on for some period of time" and that Bahe "definitely needs sexual treatment."
Bahe objected to this condition of supervised release. He asserted that it constituted unauthorized additional punishment. He also argued that, although he may need treatment, he should not be sent to Behavioral Systems Southwest (BSSW), in Phoenix, AZ, the only halfway house available for such sexual counseling at the time. Instead, Bahe's counsel argued that Bahe should be sent to a facility where Navajo-speaking counselors were available -either in Flagstaff, Arizona, which is closer to the Navajo Reservation, or at an outpatient treatment center on the Navajo Reservation itself.
The district court rejected Bahe's contentions and requests. The court's concern was that the Bureau of Prisons would not make Navajo interpreters available to Bahe during his imprisonment and that therefore Bahe would not receive the treatment he "definitely needed" for his rehabilitation. To ensure the necessary treatment, the court imposed the condition of supervised release following Bahe's imprisonment discussed above, ordered the probation officer to "ensure that [Bahe] receive sexual deviance treatment . . . including, if necessary, ensuring that the defendant be afforded a Navajo interpreter," and left it up to the probation officer to decide whether Bahe should be released from the halfway house earlier than the one year period allowed.
Bahe filed this timely appeal. We have jurisdiction to review the district court's final judgment under 28 U.S.C. S 1291 and to review the sentence imposed under the Sentencing Guidelines under 18 U.S.C. S 3742(a).
The legality of a sentence imposed under the Sentencing Guidelines is reviewed de novo, see United States v. Jackson, 176 F.3d 1175, 1176 (9th Cir. 1999) (per curiam), as is a district court's interpretation of the Sentencing Guidelines, see United States v. Smith, 175 F.3d 1147, 1148 (9th Cir. 1999). The imposition of a condition of supervised release is reviewed for abuse of discretion. See United States v. Bee, 162 F.3d 1232, 1234 (9th Cir. 1998), cert. denied, 119 S. Ct. 1509 (1999).
Review of an issue raised for the first time on appeal is for plain error. See FED. R. CRIM. P. 52(b). "Plain error is found only where there is `(1) error, (2) that was clear or obvious, (3) that affected substantial rights, and (4) that seriously affected the fairness, integrity, or public reputation of the judicial proceedings.' " United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999) (quoting United States v. Randall, 162 F.3d 557, 561 (9th Cir. 1998), cert. denied , 119 S. Ct. 1480 (1999)).
Section 3583(d) of Title 18 of the U.S. Code gives a district court "broad discretion" to order conditions of supervised release following a term of imprisonment. Bee , 162 F.3d at 1234-35 (citing United States v. Consuelo-Gonzalez, 521 F.2d 259, 265 (9th Cir. 1975) (en banc)). We have consistently held -both before and after the enactment of the Sentencing Reform Act of 1984 -that "[t]he guiding principle" for determining the validity of a condition of supervised release is whether the condition imposed "can reasonably be said to contribute significantly both to the rehabilitation of the convicted person and to the protection of the public." Consuelo Gonzalez, 521 F.2d at 264; see also Bee, 162 F.3d at 1235 (); United States v. Bolinger, 940 F.2d 478, 480-81 (9th Cir. 1991) ().
With the enactment of S 3583(d) in 1984, Congress expressly provided that a court may order as a condition of...
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