and Submitted December 5, 2017 San Francisco, California
from the United States District Court for the Northern
District of California Jeffrey S. White, District Judge,
Presiding D.C. Nos. 4:08-cr-00011-JSW, 4:16-cr-00012-JSW
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.
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.
panel affirmed a sentence for violating conditions of
supervised release, vacated a sentence for being a felon in
possession of a firearm, and remanded for the district court
to correct conditions of supervised release.
panel held that the district court did not err in applying an
enhancement under USSG § 2A2.2(a) and (b)(2)(A) for use
of a firearm in the commission of an aggravated assault.
panel rejected most of the defendant's challenges to
supervised release Special Condition 5, which imposed several
gang-related constraints, but the panel remanded for the
district court to strike the final sentence, which explicitly
removes the requirement that the government prove mens
rea in a future revocation proceeding.
panel agreed with the defendant that three of his standard
conditions of supervised release - which the Sentencing
Commission has since amended to address their vagueness - are
unconstitutionally vague. The panel remanded for the district
court to remove the phrase "meet other family
responsibilities" from Standard Condition 4. The panel
remanded for the district court to remove an ambiguity in
Standard Condition 5, which requires the defendant to work
"regularly" at a lawful occupation. The panel
remanded for the district court to modify Standard Condition
13 - which requires the defendant, as directed by the
probation officer, to notify third parties of risks that may
be occasioned by his criminal record or personal history or
characteristics - in order to provide some determinate
guidance to the defendant's probation officer, as well as
to the defendant.
panel did not need to decide whether it should read into Fed.
R. Crim. P. 32.1 a requirement that a district court in a
revocation proceeding resolve factual disputes or determine
explicitly that such resolution is unnecessary. The panel
held that any error by the district court in failing to
resolve a disputed factual allegation made by the probation
officer in the revocation proceeding was harmless.
as to Part II.B of the opinion, Judge Ikuta wrote that rather
than follow the Supreme Court's guidance that a statute
is not unconstitutionally vague merely because it lacks
mathematical certainty, the majority erroneously invalidates
three standard conditions of supervised release that have
been applied for three decades without giving rise to any
SMITH, CIRCUIT JUDGE
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.
AND PROCEDURAL BACKGROUND
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.
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.
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.
sentencing, the district court did not address the April 2015
allegation. Because of Evans's criminal history and the
seriousness of possessing a firearm, the court sentenced
Evans to the maximum two-year sentence for the supervised
release violation, to be served consecutively to the
court's sentence on the substantive charge. The district
court heard argument on the felon-in-possession charge about
whether Evans acted in self-defense when he fired shots at
the man in the black sweatshirt. The court stated that it was
an interesting legal paradigm here because normally in a
situation like this . . . I believe under state law, [the
defendant] has the burden of proof of the affirmative
But we're not at a situation where - that situation.
We're at a situation where this court has to stand here
or sit here as an adjudicatory body to determine all in, is
this a - an aggravated assault or one that is legally excused
by virtue of a self-defense - a self-defense defense being
made out by the facts in the case.
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.
timely appealed. We have jurisdiction pursuant to 28 U.S.C.
Aggravated Assault Sentencing Enhancement
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.
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, 185 Cal.Rptr. 506, 510 (Cal.Ct.App.
1982). We ...