United States v. Cruz

49 F.4th 646

UNITED STATES of America, Appellee,

v.Akeem CRUZ, a/k/a Vybe, a/k/a Mello, Defendant, Appellant.

United States of America, Appellee,

v.Taylor Lovely, Defendant, Appellant.

United States of America, Appellee,

v.Jeremiah Mitchell, a/k/a Jazz, Defendant, Appellant.

No. 21-1388

Nos. 21-1428

21-1429

No. 21-1720

United States Court of Appeals, First Circuit.

September 28, 2022

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.

Before Lynch, Selya, and Howard, Circuit Judges.

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 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 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.

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 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 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 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...