FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-50292
v.
D.C. No.
2:08-cr-00897-PA-1
DENNIS TYRONE JOHNSON, AKA Big
Den, OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
October 5, 2010—Pasadena, California
Filed November 29, 2010
Before: Raymond C. Fisher and Jay S. Bybee,
Circuit Judges, and Lyle E. Strom, District Judge.*
Opinion by Judge Strom
*The Honorable Lyle E. Strom, Senior United States District Judge for
the District of Nebraska, sitting by designation.
18855
UNITED STATES v. JOHNSON 18857
COUNSEL
Alissa Sawano Peterson, Irvine, California, for the appellant.
Andre Birotte Jr., United States Attorney, Christine C. Ewell,
Assistant United States Attorney, and Christopher K. Pelham
18858 UNITED STATES v. JOHNSON
(argued), Assistant United States Attorney, Los Angeles, Cali-
fornia, for the appellee.
OPINION
STROM, District Judge:
Dennis Tyrone Johnson (“Johnson”) pled guilty under a
plea agreement to one count of knowingly and intentionally
distributing at least 50 grams of a mixture containing cocaine
base (i.e., crack cocaine), in violation of 21 U.S.C.
§ 841(a)(1), (b)(1)(A)(iii). His plea agreement included a
waiver of his right to appeal any sentence imposed. His sen-
tencing guidelines range was 57-71 months, but the district
court imposed a sentence of 10 years (120 months). His sen-
tence also included a five-year term of supervised release with
specific conditions. Johnson appeals his sentence. We affirm
in part, vacate in part and remand.
I. BACKGROUND
Johnson’s plea agreement contained the following relevant
language: “Defendant gives up the right to appeal any sen-
tence imposed by the [c]ourt, and the manner in which the
sentence is determined, provided that the sentence is constitu-
tional.” (emphasis added). At Johnson’s plea hearing, Johnson
pled guilty to count I of the indictment under the terms of the
agreement. Before accepting Johnson’s plea, the district court
determined Johnson was (1) “fully informed of his rights,” (2)
in command of his facilities as asserted by his counsel, and
(3) not under the influence of medication, drugs or alcohol.
The court also confirmed three essential facts: (1) Johnson
had “read the plea agreement and discussed all of its terms
with [his] lawyer;” (2) Johnson had “sign[ed] [the] agree-
ment” and “underst[ood] the plea agreement and all of its
terms;” and (3) Johnson did not “need any additional time to
discuss any aspect of the plea agreement with [his counsel].”
UNITED STATES v. JOHNSON 18859
The court explained to Johnson his plea was subject to a
waiver of appeal. Government counsel subsequently read the
waiver language out loud to Johnson, and then the following
conversation took place between the court and Johnson:
THE COURT: Sir, do you understand that by enter-
ing into this agreement and pleading guilty you’ve
agreed to give up your right to appeal any sentence
you receive in accordance with the terms of this
agreement?
JOHNSON: Yes.
THE COURT: Did you discuss waiving your right to
appeal with your lawyer?
JOHNSON: Yes.
THE COURT: And based on that conversation, hav-
ing considered the matter, do you wish to give up
your right to appeal on the terms and conditions set
forth in the plea agreement?
JOHNSON: No.
THE COURT: Okay. Why don’t we try that again.
Okay. As part of this plea agreement there are cer-
tain conditions that he just recited that you’ve agreed
to waive that pertain to your right to appeal. Do you
understand that?
JOHNSON: Yes.
THE COURT: Okay. Now, do you still wish to go
forward with the plea agreement and agree to waive
your right to appeal on the terms and conditions set
forth in the plea agreement?
18860 UNITED STATES v. JOHNSON
JOHNSON: Yes.
The district court accepted Johnson’s guilty plea, finding
that Johnson “ha[d] entered his plea freely and voluntarily
with a full understanding of the charge against him and the
consequences of the plea . . . [and that Johnson understood]
his constitutional and statutory rights and wishe[d] to waive
them.”
At the final sentencing hearing, the court sentenced John-
son to 120 months imprisonment followed by a five-year term
of supervised release.
II. STANDARD OF REVIEW
Because Johnson failed to object during his plea colloquy
that his waiver of appeal was not made knowingly and volun-
tarily, he must show plain error. United States v. Ma, 290 F.3d
1002, 1005 (9th Cir. 2002). An error is plain when there is an
“(1) error, (2) that was clear or obvious, (3) that affected sub-
stantial rights, and (4) that seriously affected the fairness,
integrity, or public reputation of the judicial proceedings.”
United States v. Randall, 162 F.3d 557, 561 (9th Cir. 1998)
(citing United States v. Olano, 507 U.S. 725, 732-36 (1993)).
We apply “the rational basis standard of review to equal
protection challenges to the Sentencing Guidelines based on
a comparison of allegedly disparate sentences.” United States
v. Ellsworth, 456 F.3d 1146, 1149 (9th Cir. 2006).
As Johnson also failed to object to his conditions of super-
vised release in the proceedings below, we review his condi-
tions for plain error. See United States v. Rearden, 349 F.3d
608, 618 (9th Cir. 2003).
UNITED STATES v. JOHNSON 18861
III. DISCUSSION
A. The District Court Properly Determined Johnson
Understood The Terms Of His Plea Agreement And Waived
His Right To Appeal His Sentence
[1] Johnson contends the provision within his plea agree-
ment waiving his right to appeal his sentence should be con-
sidered invalid pursuant to Rule 11 of the Federal Rules of
Criminal Procedure. Specifically, Johnson argues the district
court did not personally address him about the terms of the
waiver and properly ascertain whether he understood those
terms. Rule 11(b)(1) provides in pertinent part:
Before the court accepts a plea of guilty . . . the court
must address the defendant personally in open court.
During this address, the court must inform the defen-
dant of, and determine that the defendant under-
stands . . . (N) the terms of any plea-agreement
provision waiving the right to appeal or to collater-
ally attack the sentence.
Fed. R. Crim. P. 11(b)(1).
[2] Although Johnson may have been initially (1) confused
by the terms of his plea agreement or (2) confused by a spe-
cific question directed to him by the court, neither constitutes
plain error. The district court “took pains to repeat” its ques-
tions and explanations to clear any confusion Johnson may
have had. United States v. Aguilar-Muniz, 156 F.3d 974, 977
(9th Cir. 1998). Moreover, even if Johnson’s alleged confu-
sion did constitute Rule 11 error, it was not “plain error”
because the record shows (1) Johnson had read his plea agree-
ment, (2) reviewed it with his counsel, (3) signed the plea
agreement and acknowledged his consent and understanding
to the waiver of appeal, and (4) testified, confirmed by his
counsel, that he was competent to participate in the plea hear-
ing. See Ma, 290 F.3d at 1005
18862 UNITED STATES v. JOHNSON
[3] Under Ma, such abundant evidence in the record acts
to cure any Rule 11 error that may have existed. 290 F.3d at
1005. Thus, the provision within Johnson’s plea agreement
waiving his right to appeal is valid, and no Rule 11 error
exists.
B. Johnson Waived His Right To Appeal His Non-
Constitutional Claims Concerning His Sentence
Johnson appeals both his sentence and the conditions of his
supervised release. Johnson has validly agreed to “give[ ] up
the right to appeal any sentence imposed by the Court, and the
manner in which the sentence is determined, provided that the
sentence is constitutional.” Emphasis added. Thus, the non-
constitutional claims of the remainder of Johnson’s appeal are
dismissed.
C. Johnson’s Equal Protection Claim Is Foreclosed
Johnson contends the district court imposed a sentence that
violated his rights under the Equal Protection Clause of the
Fifth Amendment to the Constitution. We have held, how-
ever, that “Congress’s decision to punish the sale of crack
more severely than the sale of powder cocaine was based on
a broad and legitimate basis.” United States v. Harding, 971
F.2d 410, 413 (9th Cir. 1992); accord United States v. Dumas,
64 F.3d 1427, 1431-32 (9th Cir. 1995). Johnson’s argument
is therefore foreclosed.
D. The District Court Plainly Erred When It Imposed A
Condition Of Supervised Release That Was Not Within
Constitutional Bounds
At sentencing, the district court imposed the following con-
dition of supervised release:
The defendant may not associate with anyone known
to him to be a Rollin’ 30’s gang member or persons
UNITED STATES v. JOHNSON 18863
associated with the Rollin’ 30’s gang, with the
exception of his family members. He may not know-
ingly wear, display, use or possess any Rollin’ 30’s
gang insignias, emblems, badges, buttons, caps, hats,
jackets, shoes, or any other clothing, which evi-
dences affiliation with the Rollin’ 30’s gang, and
may not knowingly display any Rollin’ 30’s signs or
gestures.
Johnson challenges two aspects of this release condition: (1)
the prohibition on associating with “persons associated with
the Rollin’ 30’s gang” and (2) the restriction on wearing
clothing evidencing an affiliation with the Rollin’ 30’s gang.
With respect to both challenges, Johnson contends that the
conditions are vague and overly broad, in violation of due
process and the First Amendment. We agree with Johnson’s
first contention but reject his second.
[4] “A district court may impose discretionary conditions
of supervised release listed in 18 U.S.C. § 3563(b), as well as
‘any other condition it considers to be appropriate.’ ” United
States v. Ross, 476 F.3d 719, 721 (9th Cir. 2007) (quoting 18
U.S.C. § 3583(d)). “The discretion is broad, but special condi-
tions must be ‘reasonably related’ to the goals of deterrence,
protection of the public, and rehabilitation of the offender.”
Ross, 476 F.3d at 721 (citing 18 U.S.C. §§ 3583(d)(1),
3553(a)). “And conditions cannot involve any ‘greater depri-
vation of liberty than is reasonably necessary for the pur-
poses’ of supervised release.” Ross, 476 F.3d at 721 (quoting
18 U.S.C. § 3583(d)(2)).
[5] In particular, as relevant here, a district court may
impose special conditions of supervised release that are
designed to prevent a defendant’s reversion into a former
crime-inducing lifestyle, or bar affiliation with former asso-
ciates. See United States v. Bolinger, 940 F.2d 478, 480 (9th
Cir. 1991); see also Ross, 476 F.3d at 721-22 (collecting
cases). Due process, however, prohibits setting a condition
18864 UNITED STATES v. JOHNSON
that “either forbids or requires the doing of an act in terms so
vague that men of common intelligence must necessarily
guess at its meaning and differ as to its application.” United
States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004) (quoting
United States v. Loy, 237 F.3d 251, 262 (3d Cir. 2001)). And
“restrictions infringing upon fundamental rights are ‘reviewed
carefully.’ ” United States v. Soltero, 510 F.3d 858, 866 (9th
Cir. 2007) (per curiam) (quoting United States v. Terrigno,
838 F.2d 371, 374 (9th Cir. 1988)). A restriction on a defen-
dant’s right to free association is invalid unless it: “(1) ‘is rea-
sonably related to’ the goals of deterrence, protection of the
public, and/or defendant rehabilitation; (2) ‘involves no
greater deprivation of liberty than is reasonably necessary’ to
achieve these goals; and (3) ‘is consistent with any pertinent
policy statements issued by the Sentencing Commission pur-
suant to 28 U.S.C. § 994(a).’ ” Soltero, 510 F.3d at 886 (quot-
ing 18 U.S.C. § 3583(d)).
[6] First, Johnson’s challenge to the restriction on wearing
or displaying gang insignia is foreclosed by precedent. In
Soltero, we upheld a supervised release condition prohibiting
the defendant from wearing, displaying, using or possessing
“any insignia, emblem, button, badge, cap, hat, scarf, ban-
dana, jewelry, paraphernalia, or any article of clothing which
may connote affiliation with, or membership in the Delhi
gang.” 510 F.3d at 865. We held this condition was within the
court’s discretion because it specifically referenced the Delhi
gang, and the district court was entitled to presume the defen-
dant — who had admitted to being a member of the gang —
was familiar with the gang’s paraphernalia. See id. at 866.
The release condition here, which proscribes wearing clothing
that “evidences affiliation” with the Rollin’ 30’s gang, is com-
parable to the condition in Soltero. The district court thus
acted within its discretion by imposing it.
[7] Second, the prohibition on associating with persons
associated with the Rollin’ 30’s gang “crosses the line,” how-
ever. Id. at 867. We have upheld supervised release conditions
UNITED STATES v. JOHNSON 18865
that preclude association with gang members. See, e.g.,
United States v. Vega, 545 F.3d 743, 749-50 (9th Cir. 2008)
(upholding a release condition prohibiting the defendant from
associating “with any member of any criminal street gang as
directed by the Probation Officer, specifically, any member of
the Harpys street gang”); Soltero, 510 F.3d at 866-67 (uphold-
ing a condition forbidding the defendant from associating
“with any known member of any criminal street gang . . . ,
specifically, any known member of the Delhi street gang”).
[8] There is a considerable difference, however, between
forbidding a defendant from associating with gang members
and precluding him from associating with persons who asso-
ciate with gang members. The latter proscription is imper-
missibly vague and entails a deprivation of liberty that is
greater than necessary to achieve the goal of preventing John-
son from reverting to his previous criminal lifestyle. As John-
son points out, this condition sweeps too broadly because it
encompasses not only those who are involved in the gang’s
criminal activities, but also those who may have only a social
connection to an individual gang member. The provision
could forbid Johnson from associating with, for example, the
mother or father, sister or brother, aunt or uncle, employer,
minister or friend of a Rollin’ 30’s gang member. It could
even preclude Johnson from meeting with his probation offi-
cer. As we said in Soltero, “[i]t is not immediately apparent
to us — and the government makes no effort to explain —
how prohibiting [the defendant] from associating with [those
persons] is ‘reasonably related’ to a permissible goal of super-
vised release.” Soltero, 510 F.3d at 867; see also Terrigno,
838 F.2d at 374 (“[I]f conditions are drawn so broadly that
they unnecessarily restrict otherwise lawful activities they are
impermissible.”); see also United States v. Napulou, 593 F.3d
1041, 1045 (9th Cir. 2010) (“When we have upheld such
restrictions, the barred activity bore a reasonable relationship
to the risk that the defendant would return to his criminal
behavior.”).
18866 UNITED STATES v. JOHNSON
[9] We do not foreclose the possibility that on remand the
district court can craft alternative language that achieves the
legitimate purposes of supervised release without sweeping
too broadly. The district court may have concluded that the
prohibition on associating with “anyone known to him to be
a Rollin’ 30’s gang member” was too narrow to prevent John-
son from associating with persons affiliated with the gang, or
to prevent Johnson from reverting to criminal activity. There
may be persons who, although they are involved in a gang’s
criminal activities, are not “members” of the gang in a formal
sense, and the district court may permissibly forbid Johnson
from associating with such persons. The condition as written,
however, is overly broad and impermissibly vague.
IV. CONCLUSION
[10] We hold that imposition of the supervised release con-
dition forbidding association with persons associated with the
Rollin’ 30’s gang was plain error. We accordingly vacate that
portion of Johnson’s sentence and remand to the district court
to consider whether substitute language would be appropriate.
We otherwise affirm.
AFFIRMED IN PART, VACATED IN PART and
REMANDED.