from the United States District Court for the District of
Colorado (D.C. No. 1:18-CR-00024-RM-1)
Kathleen Shen, Assistant Federal Public Defender (Virginia L.
Grady, Federal Public Defender, and Veronica S. Rossman,
Assistant Public Defender, with her on the briefs), Denver,
Colorado, for Defendant - Appellant.
L. Schock (Jason R. Dunn, United States Attorney, and Paul
Farley, Assistant United States Attorney, on the brief),
Denver, Colorado, for Plaintiff - Appellee.
LUCERO, BACHARACH, and McHUGH, Circuit Judges.
MCHUGH, CIRCUIT JUDGE.
Julian Cabral pleaded guilty to being a felon in possession
of a firearm and ammunition in violation of 18 U.S.C. §
922(g)(1). The district court sentenced him to forty-six
months' imprisonment followed by three years'
supervised release. Among other supervised-release
conditions, the court imposed Standard Condition Twelve,
which allows a probation officer to require Mr. Cabral to
notify third parties if the probation officer determines Mr.
Cabral poses a risk to them. Apart from a reference to
"making sure the public is protected," the district
court gave little guidance on how the probation officer
should determine whether Mr. Cabral poses a risk to another
person. Indeed, the court admitted that it "can't
say what the risk is now" and that unforeseen risks,
unrelated to Mr. Cabral's crime of conviction, might
arise in the future and trigger the condition.
Cabral challenges Standard Condition Twelve, arguing it is
unconstitutionally vague and impermissibly delegates judicial
power to a probation officer. Our prudential ripeness
doctrine prevents us from reaching his vagueness challenge.
However, his improper-delegation challenge is ripe for
review, and we hold the risk-notification condition, as
imposed by the district court, improperly delegates judicial
power to a probation officer.
in the morning on December 30, 2017, Denver police officers
responded to the report of a fight at a nightclub. Based on
live security footage, a dispatcher told the responding
officers that a male had just arrived in a white Chevy sedan
and pulled a handgun out of his pocket. Upon arrival, the
officers quickly identified Mr. Cabral as the man the
dispatcher had described. But when they tried to detain him,
Mr. Cabral walked toward the Chevy and tossed the handgun
into the car through an open door. The officers then arrested
Mr. Cabral and retrieved the handgun, which was loaded with
three rounds of ammunition.
Cabral has an extensive criminal history: along with several
misdemeanor convictions (some, but not all, juvenile
offenses), he had previously been convicted of felony
menacing with a weapon, possession of a controlled substance,
and felony robbery. After the incident at the nightclub, the
Government charged Mr. Cabral with a single count of being a
felon in possession of a firearm and ammunition in violation
of 18 U.S.C. § 922(g)(1). Mr. Cabral pleaded guilty on
March 28, 2018.
Presentence Investigation Report recommended a
within-Guidelines sentence of 42 months' imprisonment and
three years' supervised release. The report also
recommended that the district court order the standard
conditions of supervised release, including Standard
Condition Twelve ("the risk-notification
condition"). This condition provides:
If the probation officer determines that you pose a risk to
another person (including an organization), the probation
officer may require you to notify that 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.
U.S.S.G. § 5D1.3(c)(12). Mr. Cabral filed an objection
to the PSR's recommendation that the risk-notification
condition be imposed, arguing the condition is vague,
constitutes an unlawful occupational restriction,
improperly delegates authority to a probation officer. At Mr.
Cabral's sentencing hearing, the district court expressed
its concern about Mr. Cabral's history of violent crime
and imposed the risk-notification condition over Mr.
Cabral's renewed objection. But rather than providing
guidance for narrow application of the condition, the
sentencing court justified the need for broad discretion in
the probation officer when making the risk
I don't care if I can't say what the risk is now.
That's the whole point. I can't say what the risk is
now. Any number of things can happen. There are some things
that have happened now. There are things that could happen
after he is convicted and sentenced by me. For example, and I
am-to be clear I'm just making stuff up here. It could be
that two years after he is sentenced by me, some DNA evidence
shows that he involved [sic] in the perpetrator [sic] of a
rape involving some victim, somewhere and he gets convicted
for that. I can't sit here now, and predict or project
that risk. It could be that he has a mental-health issue or a
drug issue, that happens afterwards, while he is on
supervised release, that creates a risk.
The way this is being defined to me is that I, the
all-powerful Judge, should be able to say exactly what risk
is or is not worthy of requiring him to notify those affected
by the risk, and it's absurd, because I can't
anticipate every ...