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Ninth Circuit Dissenter Paez Bemoans Felon-Association Ban
Senior Circuit Judge Objects to Imposition of Supervised Release Condition, Saying It’s ‘Overbroad’
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals yesterday held, in a 2-1 memorandum decision, that a District Court judge did not err in imposing a standard condition of supervised release prohibiting the association with known felons on a defendant convicted of a drug offense, drawing dissent by Senior Circuit Judge Richard A. Paez who said that applying the restriction is “significant deprivation of liberty” and fails to account for the possibility of rehabilitation.
Dahryl Reynolds was convicted of possession with intent to distribute methamphetamine and a firearm charge in December 2021, following a trial by jury. District Court Judge James Donato of the Northern District of California sentenced him to 10 years in prison plus supervised release for five years following his incarceration.
One term of that release requires that Reynolds “not associate, communicate, or interact with” any known felons, unless his probation officer approves the connection.
At issue is whether the imposition of the condition meets the requirements set forth in 18 U.S.C. §3583(d), which addresses the permissible limitations on a convict sentenced to supervised release following a period of incarceration.
Sec. 3583(d) provides that any non-mandatory restrictions must be “reasonably related” to the sentencing factors outlined in 18 U.S.C. §3553 and involve “no greater deprivation of liberty than is reasonably necessary” to accomplish the goals reflected in that section.
Under §3553, courts are to consider certain factors in sentencing, including “the nature and circumstances of the offense and the history and characteristics of the defendant,” as well as the need for the sentence to provide just punishment, protect the public, deter criminal activity, and to meet the needs of the convict.
In a memorandum decision, signed by Senior Circuit Judge Carlos T. Bea and Circuit Judge Kim McLane Wardlaw, the court found that Donato properly considered the defendant’s tendency to associate with criminals during his “lifelong” history of violating the law and the fact that the condition allowed the probation officer to make exceptions before imposing the section.
Finding that Donato imposed the condition “after considering each of the factors,” set forth in §3583(d), “as applied to Reynolds’s individual circumstances,” the court rejected his argument that the limitation was overbroad, saying:
“We have previously upheld conditions of supervised release that broadly restrict the defendant’s associations….Here, the ban is somewhat narrowed because it prohibits association only with those Reynolds knows to have felony convictions, and because it allows Reynolds’s probation officer to make exceptions. The district court…acknowledged that Reynolds’ brother and sister-in-law had decades-old felony convictions, and instructed the Probation Office that ‘all things being equal, family-member access should get a little bit of priority.’ ”
Paez dissented, arguing that the statutory conditions were not met. He wrote:
“I recognize that the standard condition at issue here has been imposed on criminal defendants with little issue for decades. A condition’s longevity and acceptance among judges does not, however, obviate the need to comply with statutory requirements in each individual case. Because the felon association ban is overbroad as applied to Reynolds, I respectfully dissent.”
Paez’s View
The jurist said:
“Congress has instructed that a court may only impose a non-mandatory condition of supervision if: (1) the condition is ‘reasonably related to’ the statutory goals of deterrence, protecting the public, and rehabilitation, and (2) the condition ‘involves no greater deprivation of liberty than is reasonably necessary’ to fulfill those goals.”
Acknowledging that “[t]he majority correctly observes that we have upheld conditions of supervised release that restrict a defendant’s associational rights on several occasions,” he remarked that those “associational restrictions were narrowly tailored to specific risk factors based on the defendants’ criminal history.”
Pointing to Ninth Circuit precedent holding that a condition prohibiting a defendant from associating with anyone with a misdemeanor conviction was overbroad, he pointed out that the “crux” of that decision was that “a person with a past record may be entirely law-abiding today.”
Finding that reasoning applicable to the present case, he noted that “[c]ertainly, many people with felony convictions are capable of rehabilitation and may become law-abiding citizens.”
Comparing the felon association ban to conditions limiting association with “old haunts” or “persons convicted of drug offenses,” which have been found to be permissible, he concluded that “much like the group of all people with any misdemeanor conviction, a group of all people with any felony conviction sweeps more broadly.”
Ban Is Overbroad
He continued:
“As applied here, the felon association ban is overbroad….[W]hile the instant offense involved an association with a person with a felony conviction, a five-year restriction on associating, communicating, and interacting with such a large class of people is, in my view, a significant deprivation of liberty. This restriction sweeps broadly, including any person with a felony conviction for any offense from any point in time, and prohibiting not only associations but any interaction with them. As applied here, this group would include people close to Reynolds, like his immediate family, and could easily include friends, neighbors, a boss or coworker, or a sponsor in a support group.”
Reasoning that the limitation might prohibit him from associating with a “mentor in an accredited drug-treatment…program,” he argued:
“Given the numerous less restrictive alternatives to the felon association ban, the comprehensive scope of the other conditions of supervised release, and the link between Reynolds’ criminal history and substance use, I fail to see how a prohibition on associating, communicating, and interacting with any person Reynolds knows has been convicted of any felony at any time is not a ‘greater deprivation of liberty than is reasonably necessary.’ ”
Rejecting the majority’s partial reliance on the probation officer’s ability to make exceptions, he remarked:
“We have held…that a probation officer’s discretion to grant exceptions cannot save an otherwise overbroad condition.”
The case is U.S. v. Reynolds, 24-2132.
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