United States v. Magdaleno

43 F.4th 1215

UNITED STATES of America, Plaintiff-Appellee,

v.Johnny MAGDALENO, aka Soldier Boy, Defendant-Appellant.

No. 20-10390

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 12, 2022 San Francisco, California

Filed August 11, 2022

Gail Ivens (argued), Monterey, California, for Defendant-Appellant.

Claudia A. Quiroz (argued), Assistant United States Attorney; Matthew M. Yelovich, Chief, Appellate Section, Criminal Division; Stephanie M. Hinds, Acting United States Attorney; United States Attorney's Office, San Francisco, California; for Plaintiff-Appellee.

Before: Richard R. Clifton and Milan D. Smith, Jr., Circuit Judges, and Christina Reiss,^* District Judge.

CLIFTON, Circuit Judge:

While incarcerated at Monterey County Jail, Johnny Magdaleno, a high-ranking member of the East Las Casitas Norteño street gang, orchestrated and directly participated in multiple violent assaults against gang members who had violated the rules of Nuestra Familia , a prison gang to which Norteño members pledge loyalty. He pleaded guilty to one count of racketeering conspiracy and was sentenced to 360 months in prison. At sentencing, the district court imposed a special condition of supervised release set forth in the parties' plea agreement that prohibited Magdaleno from associating with any member of the Norteño or Nuestra Familia gangs. On appeal, Magdaleno argues that this condition violates his fundamental right to familial association because it does not exclude his siblings who might be gang members.

We first decline the Government's invitation to dismiss Magdaleno's appeal based on the invited error doctrine. The record in this case does not suggest that Magdaleno either caused the alleged error or intentionally abandoned a known right.

We uphold the challenged condition, however. The district court did not commit procedural error in imposing the condition, for it was not required to follow the enhanced procedural steps that apply when a condition infringes upon a "particularly significant liberty interest." Nor is the condition substantively unreasonable. Given Magdaleno's history of coordinating and executing violent gang attacks, a prohibition on gang association does not constitute an unreasonable deprivation of liberty. We affirm.

I. Background

Magdaleno belongs to the East Las Casitas Norteño street gang, a criminal organization whose members pledge loyalty to and work closely with the Nuestra Familia prison gang. Together, Nuestra Familia and Norteño members operate a criminal enterprise engaged in drug trafficking, murder, and other acts of violence. Inside prisons and local jails, these gangs work together to promote discipline among their members, maintain organizational structure, and punish members who violate gang rules.

While incarcerated at Monterey County Jail, Magdaleno served as a high-ranking member of a Norteño group called La Casa. In this capacity, Magdaleno orchestrated or directly participated in the so-called "removal" of seven gang members deemed to have violated the rules of Nuestra Familia. A Nuestra Familia "removal" followed a standard formula: a "hitter" would stab the victim repeatedly, after which two or more "bombers" would physically assault the victim, thus giving the hitter time to clean himself, hide the weapon, and avoid capture. In one such attack, Magdaleno, serving as the hitter, stabbed a victim in the chest and back over twenty times before the bombers swooped in and allowed Magdaleno to evade detection. The goal of such removals, Magdaleno acknowledged, was to "inflict maximum physical damage to the victim." In addition to coordinating and executing these removals, Magdaleno oversaw and actively participated in Nuestra Familia 's narcotics operation within Monterey County Jail.

The federal Government charged Magdaleno in September 2018 with racketeering conspiracy (Count One), conspiracy to commit murder in aid of racketeering (Count Two), and conspiracy to commit assault with a dangerous weapon in aid of racketeering (Count Three). Magdaleno pleaded guilty to Count One pursuant to a written plea agreement. The agreement, which Magdaleno signed, provided that the district court should impose a special condition of supervised release that prohibited him from "associat[ing] or hav[ing] contact with any known gang or gang member." In the agreement, Magdaleno also waived his right to appeal his conviction, "all orders of the Court," and "any aspect of [his] sentence," reserving only the right to claim that his sentence violated the plea agreement, applicable law, or the Constitution.¹

At a change-of-plea hearing before sentencing, Magdaleno affirmed under oath that he understood the terms of his plea agreement, including the special condition prohibiting association with known gang members. The district court sentenced Magdaleno to 360 months of imprisonment on Count One and imposed the following special condition of supervised release (the "Gang Condition"):

You must not knowingly participate in any gang activity. You must not associate with any member of the East Las Casitas Norteño gang or the Nuestra Familia gang, and must not wear the colors, clothing or insignia of East Las Casitas Norteño gang or the Nuestra Familia gang.²

In imposing the Gang Condition, the district court indicated that it had considered "the circumstances and nature" of Magdaleno's crime, his admission that he was an active member of the Norteño gang and Nuestra Familia enterprise, and his admission that he was "the authority in charge at the Monterey Jail" and directly participated in multiple removals. Magdaleno did not object to the Gang Condition at sentencing. This appeal followed.

On appeal, Magdaleno argues that the Gang Condition is unconstitutionally overbroad because it fails to exclude his siblings or half siblings who might belong to the Norteño or Nuestra Familia gangs. He also argues that the district court failed to comply with certain procedural requirements when imposing the condition. The Government argues that we should dismiss Magdaleno's appeal under the invited error doctrine or, in the alternative, affirm the Gang Condition under plain error review.

II. Invited Error

The Government argues that we should dismiss this appeal under the invited error doctrine, a position it continued to press at oral argument.³

"The doctrine of invited error prevents a defendant from complaining of an error that was his own fault." United States v. Myers , 804 F.3d 1246, 1254 (9th Cir. 2015) (citation omitted). If a defendant has both (1) invited the error and (2) relinquished a known right, then the alleged error is considered "waived and therefore unreviewable." Id. (citation omitted). Here, the Government has not established that either requirement is met.

For purposes of the invited error doctrine, a defendant invites error when he "induce[s] or cause[s] the error." United States v. Perez , 116 F.3d 840, 845 (9th Cir. 1997) (en banc). The paradigmatic example of inducing or causing error arises when "the defendant himself proposes allegedly flawed jury instructions[.]" Id. at 844 (gathering cases); see also, e.g., United States v. Hui Hsiung , 778 F.3d 738, 747 (9th Cir. 2015) (explaining that such a scenario "falls squarely within the ‘invited error’ doctrine"). But we have also held that a defendant can invite error in other scenarios. For example, in United States v. Reyes-Alvarado , 963 F.2d 1184 (9th Cir. 1992), we held that the defendant invited error where his own attorney had elicited a statement on cross-examination that he later argued should have been excluded. See id. at 1186–87. We reached the same conclusion in Johnson v. I.N.S. , 971 F.2d 340 (9th Cir. 1992), where the defendant's attorney had offered into evidence the document he then sought to challenge on appeal as inadmissible hearsay. See id. at 343–44. And in Myers , we likewise held that a defendant had invited error when his attorney requested and participated in a settlement conference overseen by a magistrate judge, only to argue later that the judge's participation violated the Supreme Court's prohibition on judicial involvement in plea discussions. See 804 F.3d at 1254–55. In each case, the defendant himself introduced, or directly set in motion, the error of which he complained.

Here, however, there is no indication that Magdaleno introduced the alleged error in the Gang Condition. Although the Government repeatedly claims in its Answering Brief that Magdaleno "proposed" the Gang Condition, the only evidence it cites for this assertion is the provision from Magdaleno's plea agreement indicating that the district court should impose the Gang Condition. While this provision shows that Magdaleno agreed to the condition by signing the plea agreement, it does not suggest that Magdaleno himself proposed the condition or drafted the language. Indeed, when we raised this issue at oral argument, the Government conceded that Magdaleno "did not propose" the Gang Condition. We have never applied the invited error doctrine in a circumstance like this, and the Government has not given any compelling reason for doing so now.

Even if Magdaleno had caused the alleged error, the Government has not established the second prong of the invited error doctrine. In Perez , we clarified that the invited error doctrine applies only to "rights deemed waived, ... that is, ‘known right[s]’ that have been ‘intentional[ly] relinquish[ed] or abandon[ed].’ " 116 F.3d at 842 (citation omitted) (alterations in original). Waiver is to be distinguished from forfeiture, which occurs when a defendant "fail[s] to make a timely assertion of a right" because he "is unaware of a right that is being violated." Id. at 845–46. Thus, to establish the second prong of the invited error doctrine, the Government must point to "evidence in the record that the defendant was aware of, i.e. , knew of, the relinquished or abandoned right." Id. at 845. In...