United States v. Delay Graham

FILED NOT FOR PUBLICATION JUN 17 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10200

Plaintiff-Appellee, D.C. No. 4:16-cr-00538-JSW-1 v.

DELAY GRAHAM, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Submitted June 13, 2019** San Francisco, California

Before: GOULD and IKUTA, Circuit Judges, and PEARSON,*** District Judge.

Defendant Delay Graham appeals the district court’s imposition of a condition of supervised release (special condition 2) which states that Graham

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Benita Y. Pearson, United States District Judge for the Northern District of Ohio, sitting by designation.

“must not associate with any mem[ber] of the Ghost Town Gang, and must not wear the clothing, colors, or insignia of the Ghost Town Gang.” We have jurisdiction under 28 U.S.C. § 1291.

Because Graham did not object to special condition 2 in the district court, we review for plain error. See Puckett v. United States, 556 U.S. 129, 135 (2009). We have not held that a condition that prohibits contact with gang members, even when the defendant’s sibling is a gang member, implicates a “particularly significant liberty interest.” United States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012). Therefore, the district court’s failure to make specific on-the-record findings before imposing special condition 2 was not a “clear or obvious” procedural error. United States v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003). Further, the district court did not commit a substantive error in imposing the condition, because there is sufficient evidence that Graham was a member of the Ghost Town Gang, and (even if he were not a member) prohibiting Graham from associating with gang members furthers the statutory goals of deterring future criminal conduct and protecting the public. See United States v. Evans, 883 F.3d 1154, 1161 (9th Cir. 2018).

Finally, special condition 2 is not “so vague that it fails to provide people of ordinary intelligence with fair notice of what is prohibited.” United States v. Sims, *3 849 F.3d 1259, 1260 (9th Cir. 2017). Given the evidence that Graham was a member of the Ghost Town Gang, he is familiar with its members, clothing, colors, and insignia. See United States v. Soltero, 510 F.3d 858, 866–67 (9th Cir. 2007) (per curiam). Further, because we construe the condition “consistent with well-established jurisprudence under which we presume prohibited criminal acts require an element of mens rea,” it does not reach unknowing or incidental association with gang members. United States v. Vega, 545 F.3d 743, 750 (9th Cir. 2008).

AFFIRMED.