United States Court of Appeals
For the First Circuit
No. 21-1388
UNITED STATES OF AMERICA,
Appellee,
v.
AKEEM CRUZ, a/k/a Vybe, a/k/a Mello,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Jon D. Levy, U.S. District Judge]
Nos. 21-1428, 21-1429
UNITED STATES OF AMERICA,
Appellee,
v.
TAYLOR LOVELY,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
No. 21-1720
UNITED STATES OF AMERICA,
Appellee,
v.
JEREMIAH MITCHELL, a/k/a Jazz,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Lynch, Selya, and Howard,
Circuit Judges.
Jamesa J. Drake and Drake Law LLC on brief for appellants
Cruz and Lovely.
Rory A. McNamara and Drake Law LLC son brief for appellant
Mitchell.
Darcie N. McElwee, United States Attorney, and Benjamin M.
Block, Assistant United States Attorney, on brief for appellee.
September 28, 2022
LYNCH, Circuit Judge. In these consolidated appeals,
appellants challenge Standard Condition of Supervised Release
Number 12, arguing that the condition on its face violates the Due
Process Clause of the Fifth Amendment on vagueness grounds and
Article III of the U.S. Constitution on nondelegation grounds.1
Akeem Cruz, Taylor Lovely, and Jeremiah Mitchell
("appellants") respectively pleaded guilty, pursuant to written
plea agreements with the government, to (1) one count of conspiracy
to possess with intent to distribute cocaine base and more than
100 grams of heroin in violation of 21 U.S.C. §§ 841(b)(1)(B),
846; (2) two counts of conspiracy to distribute and possess with
intent to distribute 50 grams or more of methamphetamine in
violation of
21 U.S.C. § 841(a)(1), (b)(1)(A); and (3) one count
of conspiracy to distribute and possess with intent to distribute
a mixture or substance containing fentanyl in violation of
21
U.S.C. §§ 841(a)(1), (b)(1)(C), 846. Appellants' cases below were
before three different district court judges. These separate
prosecutions were consolidated on appeal because they raise the
same appellate challenges.
The district court sentenced Cruz to 100 months'
imprisonment followed by four years' supervised release; Lovely to
1 Appellants Cruz and Lovely mistakenly argue that
Standard Condition 12 violates not the Fifth Amendment, but the
Fourteenth Amendment.
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158 months' imprisonment followed by five years' supervised
release; and Mitchell to 60 months' imprisonment followed by three
months' supervised release. The district courts also imposed
conditions of supervised release on all appellants, including
Standard Condition 12. No appellant objected to the imposition of
Standard Condition 12 in the district court. For the first time
on appeal, appellants challenge Standard Condition 12 as
unconstitutionally vague and an unconstitutional delegation of
judicial authority.
We reject on the merits all of the constitutional
challenges made and affirm.
I.
The following facts, taken from the unobjected to
portions of the presentence reports ("PSR"), sentencing hearing
transcripts, and appellants' briefs, are not in dispute.
a. Akeem Cruz
Between 2015-2017, Akeem Cruz participated in a
conspiracy to distribute heroin and cocaine base in the Portland,
Maine area. Cruz, who always maintained an independent source of
supply, was part of the conspiracy "from inception." Cruz and his
co-conspirators worked independently but "shared trap houses for
distribution," "utilized the same primary person as the connection
to customers," and steered customers to one another when their
individual supply ran low. When Cruz was incarcerated from
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November 2015 to March 2016, his then girlfriend operated his drug
business for him. After Cruz was released from prison, he resumed
operation of his illegal drug business. Law enforcement conducted
controlled purchases from Cruz in 2017 and charged him with federal
crimes.
Cruz entered into a written plea agreement with the
government in August 2019. Cruz waived his right to appeal the
"guilty plea and any other aspect of [his] conviction" and "[a]
sentence of imprisonment that does not exceed 120 months." The
district court found that Cruz was responsible for a total
converted drug weight of over 490 kilograms. At sentencing, the
district court determined, without objection, Cruz's total offense
level to be 27 and his criminal history category to be IV,
resulting in a Guidelines sentencing range of 100 to 125 months'
imprisonment. The district court imposed, without objection, a
sentence of 100 months' imprisonment followed by four years'
supervised release, during which Cruz would be required to comply
with certain enumerated conditions, including Standard Condition
12.
Cruz, through counsel, did not object to Standard
Condition 12 in the PSR, in his pre-sentencing submissions to the
district court, or at his sentencing hearing. For the first time
on appeal, Cruz challenges the constitutionality of Standard
Condition 12.
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b. Taylor Lovely
Taylor Lovely participated in two conspiracies to
distribute methamphetamine in Maine.
The first conspiracy, in which Lovely conspired to
obtain methamphetamine from suppliers in the western United States
to sell throughout northern Maine, occurred between approximately
January 1, 2017, and about August 30, 2018. Lovely was a mid-
level participant in the conspiracy, who "sent and received
packages [of methamphetamine], secured additional addresses to
receive shipments, and distributed methamphetamines to lower-level
distributors." Approximately two kilograms of methamphetamine are
associated solely with Lovely's first conspiracy.
The second conspiracy, in which Lovely traveled to
Arizona and California to obtain methamphetamine and transport it
back to Maine, occurred between approximately July 2018 and May
19, 2019. Lovely assisted in breaking down larger amounts of
methamphetamine into smaller quantities for distribution and
obtained assets in his name as part of the second conspiracy. In
November 2018, Lovely purchased two vehicles with almost $30,000
cash as part of this conspiracy. One of these vehicles was used
by co-conspirators to travel to Mexico with a large amount of cash
in January 2019. Law enforcement officers searched the other
vehicle during a traffic stop in April 2019, and seized nearly
$15,000 in cash and a .22 caliber rifle. Though Lovely was not
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present at the traffic stop, he "expressed concern" to a co-
conspirator about the car's impoundment "because there was a
firearm contained in the vehicle." At sentencing, the district
court found that it was reasonably foreseeable by Lovely that his
co-conspirator was likely to use a firearm.
Lovely entered into a written plea agreement with the
government in December 2020. Lovely waived his right to appeal
his "guilty plea and any other aspect of [his] conviction" and a
"sentence of imprisonment . . . that does not exceed 188 months."
At sentencing, the district court determined Lovely's total
offense level to be 38 and his criminal history category to be II,
resulting in a Guidelines sentencing range of 262 to 327 months'
imprisonment. The district court imposed a sentence of 158 months'
imprisonment followed by five years' supervised release for each
offense, to be served concurrently. The court also imposed
conditions of supervised release, including Standard Condition 12.
Lovely, through counsel, did not object to Standard
Condition 12 in the PSR, in his pre-sentencing submissions to the
district court, or at his sentencing hearing. Lovely now
challenges the constitutionality of Standard Condition 12 for the
first time on appeal.
c. Jeremiah Mitchell
For approximately two years, Jeremiah Mitchell obtained
heroin and fentanyl from a Massachusetts supplier for distribution
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in Maine. Mitchell provided Patricia Oliver with heroin and
cocaine that Oliver then sold to the public. On October 4, 2018,
law enforcement stopped Oliver and found in her possession fentanyl
and nearly $5,000 in cash. That same day, Mitchell texted a third
involved individual, instructing her to dispose of drug
trafficking paraphernalia -- including "a coffee grinder with
fentanyl residue; bottles of inositol, a known cutting agent; a
digital scale with fentanyl residue; and other items such as
plastic baggies common in drug-dealing operations" -- in a
Scarborough, Maine, hotel room. Mitchell was arrested later that
day when he attempted to meet Oliver to collect the proceeds of
her sales.
Mitchell entered into a written plea agreement with the
government in March 2021. Mitchell waived his right to appeal his
"guilty plea and any other aspect of [his] conviction" and "[a]
sentence of imprisonment that does not exceed 33 months." The
district court attributed over 1,300 grams of fentanyl to Mitchell.
At sentencing, the district court determined, without objection,
Mitchell's total offense level to be 33 and his criminal history
category to be II, resulting in a Guidelines sentencing range of
151 to 188 months' imprisonment. The district court then applied
a three-level decrease with the government's consent, reducing the
Guidelines sentencing range to 108 to 135 months' imprisonment.
The district court imposed a sentence of 60 months' imprisonment
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followed by three years' supervised release. The court also
imposed conditions of supervised release, including Standard
Condition 12. Mitchell preserved his right to appeal.
Mitchell, through counsel, did not object to Standard
Condition 12 in the PSR, in his pre-sentencing submissions to the
district court, or at his sentencing hearing. Mitchell now
challenges the constitutionality of Standard Condition 12 for the
first time on appeal.
II.
If an objection to a condition of supervised release is
preserved, then our review is for abuse of discretion. See United
States v. Brown, 235 F.3d 2, 3 (1st Cir. 2000); see also United
States v. D'Amario,
59 F. App'x 348, 349 (1st Cir. 2003) (per
curiam) ("[W]e ordinarily review a [preserved] challenge to the
imposition of conditions of supervised release for abuse of
discretion.").
Unpreserved claims challenging the imposition of
standard conditions of supervised release are reviewed on appeal
under the "demanding . . . plain error standard of review, which
requires [appellants] to show that (1) an error occurred (2) which
was clear or obvious and which not only (3) affected the
appellant's substantial rights but also (4) seriously impaired the
fairness, integrity, or public reputation of judicial
proceedings." United States v. Cueto-Núñez, 869 F.3d 31, 39 (1st
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Cir. 2017) (internal quotation marks omitted). "The appellant
must carry the devoir of persuasion as to each of those four
elements." United States v. Padilla, 415 F.3d 211, 218 (1st Cir.
2005). Appellants did not preserve their objections to Standard
Condition 12 that they attempt to argue on appeal. We hold that
there is no error at all and the constitutional challenges fail on
the merits. See, e.g., United States v. Antonakopoulos,
399 F.3d
68, 84 (1st Cir. 2005) (finding "no error, much less plain error").
III.
Appellants challenge Standard Condition 12 as
unconstitutionally vague and an unconstitutional delegation of
judicial authority to a probation officer.2 We find no error in
the district court's imposition of Standard Condition 12.3
a. Standard Condition 12
The text of Standard Condition 12 states as follows:
If the probation officer determines that the
defendant poses a risk to another person
2 It is clear that the challenges appellants present are
facial challenges to Standard Condition 12.
3 The government does not argue that Cruz's or Lovely's
challenges to Standard Condition 12 are barred by the appeal
waivers contained in their plea agreements, and we deem any such
argument waived. See United States v. Zannino, 895 F.2d 1, 16
(1st Cir. 1990). We express no opinion as to whether either appeal
waiver, if not waived, would extend to the challenged standard
condition. Because appellants' claims are easily resolved under
the plain error standard, we decline to decide whether appellants'
failure to object to Standard Condition 12 below constitutes waiver
or forfeiture. See United States v. Acevedo-Sueros,
826 F.3d 21,
24 (1st Cir. 2016); see also Cueto-Núñez,
869 F.3d at 39.
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(including an organization), the probation
officer may require the defendant to notify
the person about the risk and the defendant
shall comply with that instruction. The
probation officer may contact the person and
confirm that the defendant has notified the
person about the risk.
U.S. Sent'g Guidelines Manual § 5D1.3(c)(12) (U.S. Sent'g Comm'n
2016).
The U.S. Sentencing Commission promulgated this language
in 2016 pursuant to its congressionally delegated authority to
"promulgate . . . general policy statements regarding . . . the
conditions of probation and supervised release." 28 U.S.C.
§ 994(a)(2)(B). The text of Standard Condition 12 that appellants
challenge is taken nearly verbatim from the Sentencing
Commission's recommended language, changing only each instance of
"the defendant" to "you."4
A prior version of Standard Condition 12,5 which the
Sentencing Commission promulgated in 1987 shortly after its
4 The condition that appellants challenge reads:
If the probation officer determines that you
pose a risk to another person (including an
organization), the probation officer may
require you to notify the person about the
risk and you must comply with that
instruction. The probation officer may
contact the person and confirm that you have
notified the person about the risk.
5 The prior 1987 version, not at issue here, provided:
[A]s directed by the probation officer, the
defendant shall notify third parties of risks
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creation, was repeatedly criticized for alleged constitutional
deficiencies. The Seventh Circuit criticized the 1987 provision
as "riddled with ambiguities." United States v. Thompson, 777
F.3d 368, 379 (7th Cir. 2015); see also United States v. Evans,
883 F.3d 1154, 1162-64 (9th Cir.) (criticizing the 1987 condition
as impermissibly vague because it left appellants "guessing" as to
whom they would need to notify and what they would need to tell
them), cert. denied,
139 S. Ct. 133 (2018); United States v. Hill,
818 F.3d 342, 345 (7th Cir. 2016) (describing the 1987 condition
as "[h]opelessly vague"). In response to this criticism, the
Sentencing Commission amended Standard Condition 12 in 2016 to the
present version that appellants now challenge. See U.S. Sent'g
Guidelines Manual App. C Supp., Amend. 803 (Nov. 1, 2016). The
current Standard Condition 12 removes the phrase "personal history
or characteristics" and clarifies that the defendant must "comply
with [an] instruction" by the probation officer "to notify" an
identified person or organization of an identified risk, thereby
removing any guesswork as to when the defendant must act.
that may be occasioned by the defendant's
criminal record or personal history or
characteristics, and shall permit the
probation officer to make such notifications
and to confirm the defendant's compliance with
such notification requirement.
U.S. Sent'g Guidelines Manual § 5B1.4(a)(13) (U.S. Sent'g Comm'n
1987).
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Numerous circuit courts have since upheld the
constitutionality of Standard Condition 12 in its current form.
The Fifth Circuit upheld Standard Condition 12 against a delegation
challenge because the condition "only allows the probation officer
to direct when, where, and to whom the defendant must give notice"
-- "not unilaterally decide whether the defendant is subject to
the condition." United States v. Mejia-Banegas, 32 F.4th 450, 452
(5th Cir. 2022). The Eighth Circuit upheld Standard Condition 12
against a vagueness challenge because the condition states that
the defendant must notify a person of a particular risk only once
the probation officer has determined that the defendant poses a
risk to such person, and against a delegation challenge because
there was "nothing in the record to show the district court
disclaimed ultimate authority over [the defendant's] supervision."
United States v. Janis,
995 F.3d 647, 653 (8th Cir.), cert. denied,
142 S. Ct. 483 (2021); see also United States v. Robertson,
948
F.3d 912, 919-20 (8th Cir.), cert. denied,
141 S. Ct. 298 (2020).
The Ninth Circuit upheld Standard Condition 12 against a vagueness
challenge because the risks referenced in the condition are
"limited to the specific risks posed by the defendant's criminal
record," and the probation officer has "limited discretion."
United States v. Gibson,
998 F.3d 415, 423 (9th Cir. 2021)
(internal quotation marks omitted). The Tenth Circuit upheld
Standard Condition 12 against a vagueness challenge because the
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condition "clearly and specifically states that [the defendant]
must provide notice when required to do so by his probation
officer," and against a delegation challenge because "the district
court cabined the probation department's discretion." United
States v. Hull, 893 F.3d 1221, 1224-25 (10th Cir. 2018). The
Eleventh Circuit upheld Standard Condition 12 against a delegation
challenge because the condition does "not permit the probation
officer to unilaterally decide whether [the defendant] 'shall' do
something." United States v. Porter,
842 F. App'x 547, 548 (11th
Cir. 2021) (per curiam) (citation omitted); see also United States
v. Nash,
438 F.3d 1302 (11th Cir. 2006) (upholding the pre-2016
version of Standard Condition 12).6
b. Appellants' Challenge to Standard Condition 12
Despite the Sentencing Commission's 2016 amendment of
Standard Condition 12 to address vagueness concerns and the Courts
of Appeals that have upheld the Condition's constitutionality,
appellants nonetheless argue that Standard Condition 12 is
unconstitutionally vague and an unconstitutional delegation of
judicial authority.
6 In as applied attacks considering the nature of the
underlying criminal offense, some decisions have vacated and
remanded for further consideration of Standard Condition 12. See
United States v. Boles, 914 F.3d 95, 112 (2d Cir. 2019); United
States v. Cabral,
926 F.3d 687, 698 (10th Cir. 2019).
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Before discussing appellants' constitutional
challenges, we outline the general law as to a district court's
authority to impose conditions of supervised release. There is no
challenge in this case that the district courts exceeded that
authority.
A district court may impose any condition of supervised
release that "it considers to be appropriate" as long as the
condition (1) is "reasonably related" to the nature and
circumstances of the offense and the history and characteristics
of the defendant, and to various objectives including deterring
criminal conduct, protecting the public from further crimes, and
providing needed training, medical care, or effective correctional
treatment, 18 U.S.C. § 3583(d)(1); (2) involves "no greater
deprivation of liberty than is reasonably necessary" to deter
criminal conduct and protect the public,
id. § 3583(d)(2); and (3)
"is consistent with any pertinent policy statements issued by the
Sentencing Commission," id. § 3583(d)(3). See United States v.
Garrasteguy,
559 F.3d 34, 41-42 (1st Cir. 2009). Conditions of
supervised release "must . . . be supported by the record."
Id.
at 42. "[T]his requirement can be satisfied without a written or
oral explanation of the reasons supporting the condition if [the
court of appeals] can infer the [district] court's reasoning by
comparing what was argued by the parties or contained in the pre-
sentence report with what the [district] court did."
Id.
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i. Vagueness
Appellants argue that Standard Condition 12 is
unconstitutionally vague because it "gives no guidance on what
type of risks; how much risk; how to determine those risks; which
third parties; or any other information that can allow the
condition to be applied uniformly" and thus "fails to adequately
apprise defendant[s] of what [they] must do to comply with the
law."
Some courts have held that a condition of supervised
release violates due process where it "either forbids or requires
the doing of an act in terms so vague that [people] of common
intelligence must necessarily guess at its meaning and differ as
to its application." United States v. Lee, 315 F.3d 206, 214 (3d
Cir. 2003) (citation omitted). Even were we to apply that
standard, Standard Condition 12 easily passes muster.
We hold, consonant with other circuits that have
considered this question, see Janis, 995 F.3d at 653; Gibson,
998
F.3d at 423; Hull,
893 F.3d at 1224-25, that Standard Condition 12
is not unconstitutionally vague. A "commonsense" and contextual
reading of Standard Condition 12 plainly provides that the
probation officer determines the nature of the risk appellants
pose and to whom appellants must give warning of said risk by
virtue of their criminal record. See United States v. Gallo,
20
F.3d 7, 12 (1st Cir. 1994) (explaining that conditions of probation
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must be read "in a commonsense way"). This directive is
unambiguous. Appellants need not guess as to the scope of Standard
Condition 12; they simply must follow the instructions of their
probation officer. See Janis, 995 F.3d at 653; Gibson,
998 F.3d
at 423; Hull,
893 F.3d at 1224. Standard Condition 12's context
makes clear that the "risk" is defined as that posed by appellants'
criminal record. See § 5D1.3(b)(1)(A) (discretionary conditions
of supervised release, such as Standard Condition 12, may be
imposed where such conditions are reasonably related to "the nature
and circumstances of the offense and the history and
characteristics of the defendant"); see also Gibson
998 F.3d at
422; Hull,
893 F.3d at 1226. The probation officer's discretion
is thus limited as to when Standard Condition 12 should be
triggered -- risks unrelated to a probationer's criminal record
are plainly outside the scope of the provision -- all while
promoting judicial efficiency because district court judges cannot
be expected to write a condition that addresses every possible
risk scenario.
ii. Delegation
Appellants challenge Standard Condition 12 as an
unconstitutional delegation of judicial authority to probation
officers, arguing that it "offers no intelligible standards on
which risks warrant notification, and to whom," leaving probation
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officers with "sole authority to determine whether the risk-
notification provision must be followed and when."
Article III of the U.S. Constitution vests
responsibility for resolving cases and controversies in the
federal courts. "[S]eparation of powers forbids courts from
delegating their Article III responsibilities." United States v.
Meléndez-Santana, 353 F.3d 93, 101 (1st Cir. 2003). Article III
courts may use "nonjudicial officers to support judicial
functions, as long as that judicial officer retains and exercises
ultimate responsibility." Bucci v. United States,
662 F.3d 18, 35
(1st Cir. 2011) (quoting United States v. Allen,
312 F.3d 512,
515–16 (1st Cir. 2002) (internal quotation marks omitted)). For
example, courts may delegate "administrative details" to a
probation officer. Id. at 36.
We hold, consonant with other circuits that have
considered this question, see Mejia-Banegas, 32 F.4th at 452;
Janis,
995 F.3d at 653; Hull,
893 F.3d at 1225-26; Porter, 842 F.
App'x at 548-49, that Standard Condition 12 does not
unconstitutionally delegate judicial authority to a probation
officer. When the probation department identifies a risk by
applying the criteria set forth by the district court, it has no
discretion as to whether appellants must give notice pursuant to
Standard Condition 12. See Hull,
893 F.3d at 1226. The probation
officer is tasked simply with directing appellants when, where,
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and to whom notice must be given. See Nash, 438 F.3d at 1306;
Janis,
995 F.3d at 653. "That limited scope of authority neither
leaves to the probation officer the 'final say' on whether to
impose a condition of supervised release nor implicates a
significant deprivation of liberty." Mejia-Banegas,
32 F.4th at
452.
IV.
Affirmed.
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