by Matt Clarke

The U.S. Court of Appeals for the Ninth Circuit held that the U.S. District Court for the Southern District of California erred in failing to provide advance notice of a special condition of supervised release that wasn’t listed in the mandatory or discretionary conditions in the Sentencing Guidelines (“Guidelines”), included in the Presentence Report (“PSR”), or requested by a party prior to imposing the special condition.

Pursuant to a plea agreement, Olivia Reyes pleaded guilty to illegal importation of 50.4 kilograms of methamphetamine and 640 grams of heroin. She was sentenced to concurrent 78-month terms of imprisonment followed by a five-year term of supervised release.

In pronouncing the sentence, the district court orally recited numerous case-specific conditions of supervised release, many of which were recommended in the PSR. However, without prior notice to the parties, the court significantly departed from the recommendation in the PSR regarding warrantless searches. The PSR recommended that Reyes submit to searches of her “person, property, house, residence, vehicle, papers, computers [and other electronic devices, or] office” by a probation officer upon reasonable suspicion of a violation of conditions of her supervised release. In contrast, the court imposed a condition requiring Reyes to submit “to a search of her person, her property, her residence, and her vehicle by the probation officer or by any peace officer, state, federal, or local.” Defense counsel objected, but the court cut him off and explained its reasoning.

In the court’s subsequent written judgment, the court modified the special condition regarding warrantless searches pronounced orally, making the specified items subject to search more detailed but also adding that a probation officer “or any federal, state, or local law enforcement officer, at any time with or without a warrant, and with or without reasonable suspicion” may conduct a search.

Reyes appealed, arguing that the lack of notice prior to the oral sentencing violated United States v. Wise, 391 F.3d 1027 (9th Cir. 2004). Wise held that when a specific “condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed, so that counsel and the defendant will have the opportunity to address personally its appropriateness.”    

In the current case, the Court observed that Wise seems to dictate that it should vacate the search condition since it was imposed without any advance notice. The Government countered that Wise was effectively overruled by the U.S. Supreme Court’s decision in Irizarry v. United States, 553 U.S. 708 (2008), and thus is no longer binding.

The Court had no trouble distinguishing Irizarry from Wise and rejecting the Government’s argument. The Court noted Irizarry held that district courts are not required to provide advance notice that they are considering an upward variance from the applicable sentencing range under the Guidelines prior to imposing a custodial sentence. After the mandatory aspects of the Guidelines were invalidated in United States v. Booker, 543 U.S. 220 (2005), the Guidelines became advisory and merely another sentencing factor for consideration under 18 U.S.C. § 3553(a). Irizarry. As such, parties in every case now know that the sentencing court has wide discretion in determining an appropriate term of incarceration and that variance from the Guidelines range is a possibility in all cases, and thus, providing notice of such a variance is unlikely to change how the parties prepare for the sentencing hearing in any material way. Id.

Turning to special conditions of supervised release, the Court explained that critical to Irizarry was the significant change brought about by Booker’s elimination of the mandatory aspect of the Guidelines. However, there is no analog with respect to special conditions, i.e., both before and after Booker, courts have had the same degree of discretion to impose them. Thus, the Court explained “there is no basis for concluding that the notice concerns that we identified in Wise have been in have been in any way diminished.”

Additionally, unlike determining a term of incarceration—which is a “unidimensional decision” (deciding on number of months) with all parties knowing what factors are considered in making that determination—there’s no limit on the possible range of special conditions that can be imposed in connection with supervised release, the Court explained. See Wise. It further explained that “the entire rational for Irizarry’s conclusion—that, post-Booker, all parties know that they need to be prepared at sentencing to advocate for a specific number of months within a highly discretionary unidimensional numerical range—has no application to a situation in which the court is contemplating a special condition that is not mentioned in the Guidelines and that no party nor the PSR has proposed.” Consequently, the Court concluded that Wise can be reconciled with Irizarry and thus remains binding.

Turning to the present case, the Court declared that Wise controls and ruled that the district court erred by not providing notice it was contemplating the special condition regarding suspicionless searches prior to imposing that condition in its oral pronouncement of sentence.

Accordingly, the Court vacated the entirety of the supervised release portion of Reyes’ sentence and remanded to the district court for imposition of a new supervised release sentence. See: United States v. Reyes, 18 F.4th 1130 (9th Cir. 2021). 

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