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United States v. Cabral

United States Court of Appeals, Tenth Circuit

June 10, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
JON JULIAN CABRAL, Defendant-Appellant.

          Appeal 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.

          Karl L. Schock (Jason R. Dunn, United States Attorney, and Paul Farley, Assistant United States Attorney, on the brief), Denver, Colorado, for Plaintiff - Appellee.

          Before LUCERO, BACHARACH, and McHUGH, Circuit Judges.

          MCHUGH, CIRCUIT JUDGE.

         Jon 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.

         Mr. 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.

         I. BACKGROUND

         Early 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.

         Mr. 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.

         The 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, [1] and 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 assessment:[2]

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 ...

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