United States v. Livar

108 F.4th 738

UNITED STATES of America, Plaintiff-Appellee, v. Adam Lloyd LIVAR, Defendant-Appellant.

No. 22-30213

United States Court of Appeals, Ninth Circuit

Argued and Submitted April 18, 2023 San Francisco, California

Filed July 15, 2024

Appeal from the United States District Court for the District of Oregon, Michael H. Simon, District Judge, Presiding, D.C. No.3:21-cr-00031-SI-1

Suzanne Miles (argued), Assistant United States Attorney, Criminal Appeals Section Chief; Thomas S. Ratcliffe, Assistant United States Attorney; Natalie K. Wight, United States Attorney, District of Oregon; United States Department of Justice, Office of the United States Attorney, Portland, Oregon; for Plaintiff-Appellee.

Stephen R. Sady (argued), Chief Deputy Federal Public Defender, Federal Public Defender's Office, Portland, Oregon, for Defendant-Appellant.

Before: Lawrence VanDyke and Gabriel P. Sanchez, Circuit Judges, and Kathryn H. Vratil,^* District Judge.

Per Curiam Opinion;

Concurrence by Judge Vratil;

Concurrence and Dissent by Judge VanDyke;

Concurrence and Dissent by Judge Sanchez

OPINION

PER CURIAM:

Adam Lloyd Livar appeals his thirty-month sentence imposed after he pled guilty to a one-count indictment for failing to register as a sex offender in violation of 18 U.S.C. § 2250(a). Because each panel member has issued their own opinion and the composition of the majority changes for different conclusions, this per curiam opinion provides (1) the necessary factual background to understand the individual decisions that follow, (2) the panel's unanimous mootness analysis, and (3) a summary of the panel's other holdings derived from the separate writings.

I.

On March 24, 2003, Adam Livar was convicted of indecency with a child in Texas. As a result of this conviction, he must register as a sex offender pursuant to the Sex Offender Registration and Notification Act, 18 U.S.C. § 2250(a). In 2019, Livar registered as a sex offender in the states of Idaho and Oregon, listing his residence in Payette, Idaho. When he moved to Oregon in early 2020, he did not update his address within the sex offender registry. He was consequently charged with a single count of failing to register as a sex offender, in violation of § 2250(a). He entered a guilty plea.

Under the plea agreement, the government agreed to "jointly recommend a sentence at the middle of the advisory guideline range followed by a 5-year term of supervised release, as long as [Livar] demonstrates acceptance of responsibility." (emphasis in original). The government reserved the right to change the recommendation if Livar committed any new criminal offense, obstructed or attempted to obstruct justice, or acted inconsistently with acceptance of responsibility between entering the plea and sentencing. The agreement also contained the following breach provision:

If defendant breaches the terms of this agreement, or commits any new criminal offenses between signing this agreement and sentencing, the USAO is relieved of its obligations under this agreement, but defendant may not withdraw any guilty plea. If defendant believes that the government has breached the plea agreement, defendant must raise any such claim before the district court, either prior to or at sentencing. If defendant fails to raise a breach claim in district court, defendant has waived any such claim and is precluded from raising a breach claim for the first time on appeal.

On October 25, 2022, after the entry of his guilty plea but before sentencing, Livar placed a call to an Oregon Department of Human Services child protective services caseworker on a recorded line from prison. The caseworker informed Livar that his four young children had been placed in foster care. Upset by this news, Livar responded with a barrage of profanity-laced threatening statements. Shortly after the call, Livar apologized to the caseworker for his behavior.

Based on Livar's statements in this recorded prison call, the Malheur County District Attorney charged him with misdemeanor offenses under Oregon state law for menacing and harassment.¹ When the government learned of the new charges, the government emailed Livar's counsel and the probation office outlining its position that Livar's call was inconsistent with acceptance of responsibility as set forth in the plea agreement. The government informed Livar's counsel that it was no longer bound by the joint sentencing recommendation and was free to recommend a more severe punishment. Livar's counsel responded that Livar had accepted responsibility for the charged offense and cautioned that it would be premature for the government to change its recommendation prior to the court's determination of acceptance of responsibility.

The government did not first seek a judicial determination of Livar's alleged breach of the plea agreement. Instead, the government filed a sentencing memorandum in which it asserted that Livar breached the plea agreement by committing a new crime, the recorded prison call. The government argued it was no longer bound by its obligation to recommend a mid-level sentence or to recommend a downward adjustment for acceptance of responsibility. The government also argued that the recorded prison call reflected that Livar did not accept responsibility for the offense of conviction. The government accordingly recommended a sentence of thirty-seven months, the high end of the sentencing guidelines range, with no downward adjustment for acceptance of responsibility. The government also recommended ten years of supervised release.

Livar's sentencing memorandum asserted that he had accepted responsibility for the offense of conviction—his failure to register as a sex offender—and he argued for a sentence consistent with the terms of the plea agreement: a mid-range sentence of twenty-seven months and five years of supervised release.

On December 14, 2022, the parties appeared for Livar's sentencing hearing. After the government and defense counsel presented oral argument, the district court determined that Livar had accepted responsibility for the offense of conviction, with an applicable guideline range of twenty-four to thirty months. At this point in the hearing, the government asked the court whether it could advocate for a sentence at the high end of the sentencing range or whether it was "stuck" with its obligation in the plea agreement to recommend a mid-range sentence. The court responded that the government should "stick with arguing at the mid-level range so that there is no question that you are abiding by your agreement." Defense counsel argued that the government had already violated the terms of the plea agreement by not waiting for the court's decision whether Livar had accepted responsibility before advocating for a high-end sentence in its sentencing memorandum.

After argument from the government that Livar was himself in breach of the plea agreement, the district court declined to make such a finding. The court found, however, that the government acted in good faith and had not breached the plea agreement. The district court sentenced Livar to a thirty-month prison term followed by a five-year term of supervised release. On December 28, 2022, the court entered its second amended judgment. This appeal timely followed.

We have jurisdiction pursuant to 28 U.S.C. § 1291. Where, as here, the defendant objected to the government's alleged breach of the plea agreement during district court proceedings, we review such claim de novo. See United States v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000).

II.

We first address whether this appeal has become moot based on Livar's release from the Federal Bureau of Prisons on June 6, 2023, to begin serving his five-year term of supervised release. After considering the parties' supplemental briefing, we agree with Livar that this appeal is not moot.

"A case becomes moot when it no longer satisfies the case-or-controversy requirement" of the Constitution, which demands that "the parties 'continue to have a personal stake in the outcome of the lawsuit.' " United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2001) (quoting Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)). "This means that, throughout the litigation, the plaintiff must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Spencer, 523 U.S. at 7, 118 S.Ct. 978 (quotation marks and citation omitted). Thus, "[a] defendant challenging the length of his prison sentence has a personal stake in the outcome . . . when the defendant has completed his term of incarceration but is still serving a term of supervised release" and the possibility exists that a court may reduce or modify the defendant's supervised release term as a form of relief. United States v. D.M., 869 F.3d 1133, 1137 (9th Cir. 2017). "The party asserting mootness bears a 'heavy burden of establishing that there is no effective relief remaining for a court to provide.' " United States v. Strong, 489 F.3d 1055, 1059 (9th Cir. 2007) (quoting GATX/Airlog Co. v. U.S. Dist. Ct., 192 F.3d 1304, 1306 (9th Cir. 1999)).

The government contends that the case is moot because the district court sentenced Livar to the minimum supervised release term allowed under the statute. See 18 U.S.C. § 3583(k) (requiring a supervised release term of "any term of years not less than 5" for conviction under 18 U.S.C. § 2250). To be sure, unless a defendant qualifies for safety valve relief under 18 U.S.C. § 3553(e), the district court generally lacks authority at sentencing to impose a term of supervised release below the statutory minimum. After sentencing, however, the district court has discretion to "modify, reduce, or enlarge the conditions of supervised release, at any time prior to the expiration or termination of the term of supervised release." 18 U.S.C. § 3583(e)(2). The court may also terminate an individual's term...