United States v. Dupas

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 04-50055
Plaintiff-Appellee, D.C. No.
v.  CR-02-00339-
MATTHEW EUGENE DUPAS, DOC-2
Defendant-Appellant.
 OPINION

Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding

Argued March 11, 2005; Resubmitted July 27, 2005
Pasadena, California

Filed August 3, 2005

Before: John R. Gibson,* Susan P. Graber, and
Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Graber

*The Honorable John R. Gibson, Senior United States Circuit Judge for
the Eighth Circuit, sitting by designation.

9059
9062 UNITED STATES v. DUPAS

COUNSEL

Jonathan D. Libby, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.

Richard Y. Lee, Assistant United States Attorney, Santa Ana,
California, for the plaintiff-appellee.

OPINION

GRABER, Circuit Judge:

Defendant Matthew Eugene Dupas appeals the sentence
imposed after his conviction for possessing stolen mail in vio-
lation of 18 U.S.C. § 1708.1 The government concedes that
Defendant’s sentence of imprisonment may be remanded to
the district court pursuant to our decision in United States v.
Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc), because
that sentence rested on the district court’s finding of fact as
to the amount of loss and was imposed according to the then-
mandatory United States Sentencing Guidelines. Here, we
address two other challenges to Defendant’s sentence, both of
which present issues of first impression in this circuit. Both
issues are raised for the first time on appeal, so we review
only for plain error. See id. at 1078 (reviewing the defendant’s
1
Defendant’s guilty plea was conditioned on his appeal of the district
court’s denial of his motion to suppress. We affirmed the district court’s
denial of the motion and affirmed Defendant’s conviction in a memoran-
dum disposition. United States v. Dupas, No. 04-50055, 126 Fed. Appx.
845 (9th Cir. Mar. 28, 2005). We then withdrew submission of Defen-
dant’s challenge to his sentence pending our en banc decision in United
States v. Ameline, 409 F.3d 1073 (9th Cir. 2005) (en banc).
 UNITED STATES v. DUPAS 9063
Sixth Amendment challenge for plain error); United States v.
Rearden, 349 F.3d 608, 618 (9th Cir. 2003) (reviewing a chal-
lenge to conditions of supervised release for plain error), cert.
denied, 125 S. Ct. 32 (2004).

First, Defendant argues that the retroactivity principles of
the Fifth Amendment’s Due Process Clause preclude the
retroactive application of the remedial holding of United
States v. Booker, 125 S. Ct. 738, 756-57 (2005), which
excised portions of Title 18 of the United States Code in order
to make the Sentencing Guidelines effectively advisory. As
we explain below, we reject Defendant’s argument and hold
that he may be resentenced according to the principles set
forth in Booker and Ameline.

Second, Defendant challenges two conditions of supervised
release pertaining to searches and to payments for substance
abuse treatment. We affirm the former and, although we are
uncertain whether the latter was an improper delegation of the
district court’s authority under 18 U.S.C. § 3672, our very
uncertainty persuades us that the district did not plainly err.

A. Factual and Procedural Background

Defendant and a co-defendant were stopped by a police
officer for traffic violations. After the officer learned that an
arrest warrant was outstanding for the co-defendant, he
arrested the co-defendant and searched the passenger com-
partment of the car. He found mail, checks, and credit cards
belonging to other people and, consequently, arrested Defen-
dant as well. A search of the entire car revealed many similar
items.

After the district court denied Defendant’s motion to sup-
press, he entered a conditional guilty plea to one count of pos-
session of stolen mail. In the plea agreement, Defendant and
the government stipulated to an amount of loss not exceeding
$5,000. Before accepting Defendant’s plea, the district court
9064 UNITED STATES v. DUPAS
warned him that the court was bound to apply the Sentencing
Guidelines (“U.S.S.G.”) and, therefore, could not guarantee
that Defendant would receive the sentence agreed to in the
plea agreement.2

At sentencing, the district court declined to accept the par-
ties’ stipulated calculation of loss and instead found, over the
objections of both parties, that the intended loss was
$49,306.95. The court based its calculation on information in
the presentence report (“PSR”) that Defendant had possessed
67 “unauthorized access devices” (under U.S.S.G. § 2B1.1,
cmt. n.2(F)(I) (2002), the minimum loss per access device is
$500, for a total of $33,500); and that Defendant possessed
stolen checkbooks from which they had written checks
amounting to $15,806.95. Because of those findings, Defen-
dant received an upward adjustment of 6 offense levels under
U.S.S.G. § 2B1.1(b)(1)(D), resulting in a total offense level of
13 and a sentencing range of 24 to 30 months. The court sen-
tenced Defendant at the bottom of that range.

The court also imposed several conditions of supervised
release, two of which Defendant challenges on appeal. The
conditions are reproduced below, in our discussion of Defen-
dant’s arguments.

B. Ex post facto principles do not prohibit resentencing
under Booker and Ameline.

Some background is helpful to understanding Defendant’s
argument. After the Supreme Court invalidated Washington
State’s sentencing scheme in Blakely v. Washington, 542 U.S.
296 (2004), many courts and commentators correctly pre-
dicted that the Supreme Court also would hold that the federal
2
The court noted, “the Guidelines become sentencing, in a sense.”
Because of this comment and because the court sentenced Defendant to
the bottom of the applicable sentencing range, we agree with the parties
that resentencing is appropriate under Ameline.
 UNITED STATES v. DUPAS 9065
system of sentencing guidelines violated the Sixth Amend-
ment (as it ultimately did in Booker). Commentators dis-
cussed a variety of remedies, including sentencing trials at
which a jury would be required to find, beyond a reasonable
doubt, the facts that determine the sentencing range. See, e.g.,
Nancy J. King & Susan R. Klein, Beyond Blakely, 16 Fed.
Sent. Rep. 316, 322-23 (2004) (discussing sentencing findings
by juries). The Supreme Court did not select that remedy, pre-
ferring instead to excise the elements of the Sentencing
Reform Act that had made the guidelines mandatory. See
Booker, 125 S. Ct. at 756-57.

Defendant is not satisfied with the remedy selected by the
Supreme Court. The “advisory guidelines” remedy gives the
sentencing judge discretion to sentence outside the guideline
range, but still allows the sentencing judge (as distinct from
a jury) to make the findings of fact necessary to determine the
guideline range in the first place. In Defendant’s case, where
the parties agreed to a loss of no more than $5,000 but the dis-
trict court instead found a loss of $49,306.95, Defendant
would prefer a remedy that eliminates the court’s power to
make findings of fact at all. Under Ameline, the district court
could make the same finding of fact at resentencing and, if it
does, Defendant will have to rely on the court’s discretion to
receive a sentence lower than the range set by the guidelines.
By contrast, under a system in which the guidelines were
mandatory but a jury was required to decide the facts neces-
sary to determine the sentencing range, Defendant would be
assured of a sentencing range corresponding to a loss of
$5,000 or less, because the government agreed not to argue
that the amount of loss exceeded $5,000. In pursuit of that
result, Defendant fashions a novel due process argument
based on ex post facto principles. His argument proceeds in
two steps.

First, Defendant points out that Booker contains two sepa-
rate holdings. One is the Sixth Amendment rule set forth in
Justice Stevens’ opinion: Within a system of mandatory sen-
9066 UNITED STATES v. DUPAS
tencing guidelines, any fact (other than a prior conviction)
that is necessary to support a sentence exceeding the maxi-
mum authorized by the facts established in a guilty plea or
jury verdict must be admitted by the defendant or proved to
the jury beyond a reasonable doubt. See Booker, 125 S. Ct. at
756. The other is Justice Breyer’s remedial holding, which
modified the Sentencing Reform Act of 1984 to make the
Guidelines advisory by excising the provisions of Title 18 that
previously had made the Guidelines mandatory. Id. at 756-57.

In the second step of his argument, Defendant “essentially
asks this court to apply Justice Stevens’ opinion in Booker
retroactively, but refuse to apply Justice Breyer’s opinion in
Booker retroactively.” United States v. Duncan, 400 F.3d
1297, 1304 (11th Cir. 2005). He argues that we must apply
different retroactivity analyses to Booker’s two holdings. Spe-
cifically, he argues that, under Griffith v. Kentucky, 479 U.S.
314, 327-28 (1987), defendants in pending cases must be
afforded the benefit of a constitutional rule such as Justice
Stevens’ Sixth Amendment holding. But retroactive applica-
tion of new judicial interpretations of criminal statutes,
Defendant argues, is barred by the ex post facto principles
that informed the Supreme Court’s due process decision in
Bouie v. City of Columbia, 378 U.S. 347, 353-55 (1964).3 In
short, Defendant seeks the benefit of Justice Stevens’s
opinion—which, standing alone, would require the facts sup-
porting his sentence to be admitted or proved beyond a rea-
sonable doubt—without the burden of Justice Breyer’s
opinion—which instead resolves the Sixth Amendment prob-
lem by making the Guidelines advisory. Again, in Defen-
dant’s particular circumstance, that would ensure a lower
sentence than that originally imposed because Defendant and
3
The Ex Post Facto Clause of the Fifth Amendment, by its terms,
applies only to changes in the law resulting from legislative or executive
action, but the Court has extended similar principles to the Due Process
Clause to cover “unforeseeable [judicial] construction of a criminal stat-
ute.” Bouie, 378 U.S. at 354-55.
 UNITED STATES v. DUPAS 9067
the government stipulated to an amount of loss not exceeding
$5,000 and the guideline range would be correspondingly
lower.

[1] Defendant’s argument suffers from three fatal flaws.
First, as the Eleventh Circuit pointed out in responding to a
very similar argument, “in Booker, the Supreme Court
expressly stated that both holdings should be applied to cases
on direct review.” Duncan, 400 F.3d at 1304. And our deci-
sion in Ameline, under which Sixth Amendment violations
can be cured by giving district courts the opportunity to resen-
tence defendants under the now-advisory Guidelines, neces-
sarily implies that appellate courts should apply both Booker
holdings retroactively.

[2] Second, “[i]n United States v. Newman, 203 F.3d 700,
703 (9th Cir. 2000), we held that Bouie applied only to after-
the-fact increases in the scope of criminal liability and not to
retroactive sentence enhancements.” Holgerson v. Knowles,
309 F.3d 1200, 1202 (9th Cir. 2002) (emphasis added);4 see
also Webster v. Woodford, 369 F.3d 1062, 1069 (9th Cir.
2004) (noting that “Bouie does not apply to sentencing
schemes” and citing Newman). Newman clearly held that
Ninth Circuit precedent limited Bouie to new interpretations
of substantive criminal statutes. 203 F.3d at 702. Contrary to
Defendant’s argument, Newman’s holding regarding Bouie—
which is the focus of the opinion—is not dictum merely
because we gave a one-sentence alternative holding at the end
of the opinion. See id. at 703 (concluding that, even if Bouie
applied, no due process violation had occurred because the
judicial decision at issue was reasonably foreseeable); see
also Barapind v. Enomoto, 400 F.3d 744, 750-51 (9th Cir.
2005) (en banc) (per curiam) (explaining that an issue pre-
4
Holgerson involved a habeas petition by a defendant in state custody,
so we relied on Newman only for the proposition that it was not clearly
established that Bouie applies to sentencing enhancements. Holgerson,
309 F.3d at 1203.
9068 UNITED STATES v. DUPAS
sented to, and decided by, the court can be controlling even
if it was not “in some technical sense ‘necessary’ to our dis-
position of the case”).

[3] Finally, even if we could distinguish Newman, the hold-
ing in Bouie would not entitle Defendant to protection from
every change in sentencing law that might disadvantage him.
In Rogers v. Tennessee, 532 U.S. 451, 458 (2001), the
Supreme Court explained that, despite its expansive phrasing,
Bouie did not “incorporate[ ] the specific prohibitions of the
Ex Post Facto Clause” into the Due Process Clause:

[Bouie’s] rationale rested on core due process con-
cepts of notice, foreseeability, and, in particular, the
right to fair warning as those concepts bear on the
constitutionality of attaching criminal penalties to
what previously had been innocent conduct.

Id. at 459 (citation omitted). Fair warning, then, is the touch-
stone of the retroactivity analysis under the Due Process
Clause. See id. at 462.

[4] The Eleventh Circuit relied on Rogers’ clarification of
Bouie to reject an argument similar to the one that Defendant
makes here. Duncan, 400 F.3d at 1306-08. The defendant in
Duncan had argued that “Justice Breyer’s remedial interpreta-
tion, if applied retroactively, would increase the sentence
authorized by the jury’s verdict” to the maximum permitted
by the statute of conviction. Id. at 1307. The court held that,
because the relevant maximum at the time the defendant com-
mitted his offense was the statutory maximum enacted in the
United States Code, which set a maximum of life imprison-
ment, the defendant had sufficient warning of the potential
consequences of his actions to satisfy the due process con-
cerns articulated in Rogers. Id.; see also United States v.
Gray, 362 F. Supp. 2d 714, 725-26 (S.D.W.Va. 2005) (reject-
ing the argument that due process prohibits retroactive appli-
cation of the Booker remedial opinion because the defendants
 UNITED STATES v. DUPAS 9069
had fair warning of the statutory maximum). Like the defen-
dant in Duncan, Defendant had fair notice, when he commit-
ted his crime and entered his plea, that his sentence could be
based on a judicial determination of the amount of intended
loss and set within the applicable statutory maximum.

[5] For those three reasons, we reject Defendant’s argument
and grant him a limited remand according to the procedures
set forth in Ameline, 409 F.3d at 1084-85.5

C. The district court did not plainly err by imposing
conditions of supervised release.

1. The search condition

[6] Defendant argues that the following condition, which
provides for searches “with or without” cause, facially vio-
lates his Fourth Amendment rights:

The defendant shall submit person and property to
5
Defendant raises two arguments about the procedure that the district
court must follow in the event that the court agrees to resentence him. One
of those arguments—that sentencing facts must be proved to the court
beyond a reasonable doubt—is foreclosed by Ameline. In Ameline, we
explained that the district court must continue to apply the burdens of
proof set forth in United States v. Howard, 894 F.2d 1085, 1089-90 (9th
Cir. 1990). 409 F.3d at 1085-86.
The other argument, regarding the effect of the plea agreement on the
government’s opportunity to present evidence to the district court at resen-
tencing, should be addressed to the district court in the event that resen-
tencing occurs. Nonetheless, we will make two observations. First,
Ameline precludes the court from relying solely on the factual statements
in the PSR during resentencing only if the defendant “contests the factual
basis of a PSR.” Id. It is not clear to us that Defendant has raised a factual
objection to the PSR, as distinct from an argument concerning the infer-
ences that the court may draw from the undisputed facts contained therein.
Second, Defendant’s plea agreement reserved to both parties the opportu-
nity to “supplement the facts stipulated to in this agreement by supplying
relevant information to . . . the Court.”
9070 UNITED STATES v. DUPAS
search or seizure at any time of the day or night by
any law enforcement officer with or without a war-
rant and with or without reasonable or probable
cause[.]

The constitutionality of this condition is controlled by United
States v. Guagliardo, 278 F.3d 868, 873 (9th Cir. 2002) (per
curiam). There, we upheld an apparently identical condition
of supervised release that required the defendant to submit to
searches by any probation or law enforcement officer “with or
without reasonable or probable cause.” Id.; see also id. (Fer-
nandez, J., concurring and dissenting). We are bound by that
holding.6

[7] Defendant also argues that we must remand for the dis-
trict court to provide a statement of reasons why the condition
was imposed. Under Rearden, an explicit statement of reasons
is not absolutely required by 18 U.S.C. § 3583(d). See 349
F.3d at 619 (reviewing conditions of supervised release
despite the absence of a statement of reasons for each condi-
tion, where the reasons for the conditions were clear from the
PSR). Moreover, Defendant has not argued that the district
court lacked sufficient reasons for imposing the condition.
Defendant’s challenge rests only on the Fourth Amendment,
and he does not explain how the absence of a statement of
reasons furthers his constitutional challenge or distinguishes
this case from Guagliardo.

2. The treatment condition

The court ordered Defendant to participate in substance
abuse treatment and imposed the following condition regard-
ing payment for that treatment:
6
There may be circumstances in which a search conducted pursuant to
this condition would raise Fourth Amendment concerns, but we need not
confront such circumstances here. We are asked to determine only the
facial validity of the condition, which was upheld in Guagliardo, 278 F.3d
at 873.
 UNITED STATES v. DUPAS 9071
As directed by the Probation Officer, the defendant
shall pay all or part of the costs of treating the defen-
dant’s drug or alcohol dependancy to the aftercare
contractor during the period of community supervi-
sion, pursuant to 18 USC 3672.

The defendant shall provide payment and proof of
payment as directed by the Probation Officer[.]

Defendant argues that allowing the probation officer to deter-
mine Defendant’s share of the treatment costs improperly del-
egates to the probation officer the court’s exclusive authority
under 18 U.S.C. § 3672. He urges us to interpret § 3672
strictly, as the courts of appeals have interpreted statutes that
give the court exclusive authority to order payment of restitu-
tion and fines. See, e.g., United States v. Gunning, 339 F.3d
948, 949-50 (9th Cir. 2003) (per curiam) (following other cir-
cuits and holding that the court’s responsibility under the
Mandatory Victims Restitution Act of 1996 (“MVRA”), 18
U.S.C. §§ 3663A-3664, to specify the “manner in which . . .
restitution is to be paid” is nondelegable); United States v.
Merric, 166 F.3d 406, 408-09 (1st Cir. 1999) (joining other
circuits and holding that only the court may set a schedule for
payment of fines pursuant to 18 U.S.C. § 3572(d)).

[8] Section 3672 sets forth the “Duties of [the] Director of
[the] Administrative Office of the United States Courts” with
respect to the probation system and its officers. Among other
things, it gives the director “the authority to contract with any
appropriate public or private agency or person for the detec-
tion of and care in the community of an offender” with sub-
stance abuse or psychiatric issues. After setting forth the
various duties and powers of the director, the statute’s final
paragraph turns to the authority of the court to order payment
for substance abuse and psychiatric treatment:

Whenever the court finds that funds are available
for payment by or on behalf of a person furnished
9072 UNITED STATES v. DUPAS
such services, training, or guidance, the court may
direct that such funds be paid to the Director. Any
moneys collected under this paragraph shall be used
to reimburse the appropriations obligated and dis-
bursed in payment for such services, training, or
guidance.

18 U.S.C. § 3672 (emphasis added).7

There are good arguments on both sides of the question that
Defendant raises. On the one hand, § 3672 refers expressly to
the court’s authority. In this sense, it parallels the text of the
restitution and fine statutes that we mentioned above. See id.
§ 3572(d) (“If the court provides for payment in installments,
the installments shall be in equal monthly payments over the
period provided by the court, unless the court establishes
another schedule.”); id. § 3664(f)(1)(B) (“Upon determination
of the amount of restitution owed to each victim, the court
shall . . . specify in the restitution order the manner in which,
and the schedule according to which, the restitution is to be
paid . . . .”). As we have said, those statutes have been inter-
preted literally to require that the court alone exercise the
specified authority. See, e.g., Gunning, 339 F.3d at 949 (“The
language of the MVRA is categorical.”); United States v. Kas-
sar, 47 F.3d 562, 568 (2d Cir. 1995) (“The statutory language
of §§ 3572(d) and 3663(f)(1) identically impose upon the
‘court’ the responsibility for determining installment pay-
ments[.]”),8 abrogated on other grounds as stated in United
7
This paragraph was added to § 3672 in 1987, Pub. L. No. 100-182,
§ 20(2), 101 Stat. 1266 (1987), a year after the provision relating to the
director’s authority to contract with treatment providers. We have located
no legislative history pertaining to the 1987 addition.
8
We have never held that delegation is improper under § 3572(d). In
fact, in Montano-Figueroa v. Crabtree, 162 F.3d 548, 549-50 (9th Cir.
1998) (per curiam), we questioned Kassar’s interpretation of § 3572(d)
and concluded that the statute did not bar a Bureau of Prisons program that
diverted a prisoner’s wages to pay a fine set by the district court.
Montano-Figueroa, however, did not involve an express delegation by the
district court. Id. at 450.
 UNITED STATES v. DUPAS 9073
States v. Mercurris, 192 F.3d 290, 294 (2d Cir. 1999). Some
courts have rested such literal interpretations on the principle
that the imposition of punishment is a core judicial function.
See United States v. Miller, 77 F.3d 71, 77-78 (4th Cir. 1 996)
(reasoning that the statutory duty to fix the terms of fines and
restitution “must be read as exclusive because the imposition
of a sentence, including the terms of probation or supervised
release, is a core judicial function”); Merric, 166 F.3d at 409
(recognizing some ambiguity in § 3572(d), but “join[ing] the
other circuit courts that have held that it is the inherent
responsibility of the judge to determine matters of punishment
and this includes final authority over all payment matters”).
Defendant’s argument that we must interpret § 3672’s refer-
ence to “the court” strictly finds support in those cases.

[9] On the other hand, the only other circuit to address this
precise question concluded that delegation to a probation offi-
cer was permissible under § 3672, despite controlling prece-
dent holding that the court’s authority under a restitution
statute is exclusive and nondelegable. United States v. War-
den, 291 F.3d 363, 365-66 (5th Cir. 2002) (distinguishing
United States v. Albro, 32 F.3d 173 (5th Cir. 1994) (per
curiam)). In Warden, the condition read: “The defendant will
incur costs associated with such [treatment], based on ability
to pay as determined by the probation officer.” Id. at 364. The
court distinguished that directive from the one in Albro. In
Albro, the district court had set a total restitution amount and
directed the probation office to determine a payment sched-
ule. Albro, 32 F.3d at 174. The Warden panel held that its
case was different because the probation officer’s only
responsibility was to determine the offender’s ability to pay.
261 F.3d at 366.

There are strong arguments in favor of Warden’s position,
not the least of which is our preference for avoiding circuit
splits. Additionally, the context of the provision in § 3672 is
quite different from the context found in §§ 3572 and 3664.
The latter provisions relate generally to the court’s imposition
9074 UNITED STATES v. DUPAS
of sentences and restitution. Section 3672, by contrast, is
directed primarily to the functions of the probation office.
Moreover, the need to interpret the statute strictly so as to
reserve core judicial functions to the court is weaker here; the
condition at issue does not delegate to the probation officer
the power to order substance abuse treatment in the first
place. Cf. United States v. York, 357 F.3d 14, 22 (1st Cir.
2004) (reasoning that setting a schedule for polygraph testing
is a “matter of administrative detail,” not a core judicial func-
tion). Finally, § 3672 requires the court only to find generally
that funds are available to pay for an offender’s treatment and,
if so, allows the court to direct that such funds be paid. By
contrast, § 3572(d) and § 3664(f) expressly require the court
to establish or specify the precise payment schedule. Cf. SEC
v. McCarthy, 322 F.3d 650, 656 (9th Cir. 2003) (stating that,
when Congress uses different words in connection with the
same subject, we presume that Congress intended a different
meaning).

[10] Fortunately, our only task here is to determine whether
the district court plainly erred. “Before [we] can correct an
error not raised at trial, there must be (1) error, (2) that is
plain, and (3) that affects substantial rights.” United States v.
Jordan, 256 F.3d 922, 926 (9th Cir. 2001) (internal quotation
marks omitted). Only when all three conditions are met may
we reverse, and then only if the error “seriously affects the
fairness, integrity, or public reputation” of the proceeding. Id.
We conclude that, even if the district court erred, the second
condition is not met in this case. That is, the error, if any, is
not “plain.” For an error to be plain, it must be “clear” or “ob-
vious” under current law. United States v. Paul, 37 F.3d 496,
500 (9th Cir. 1994) (citing United States v. Olano, 507 U.S.
725, 734 (1993)). As our discussion above suggests, we are
not persuaded that any error would have been “clear” under
current law. See Warden, 291 F.3d at 365-66 (allowing dele-
gation). Accordingly, imposition of the treatment condition
was not plain error.
 UNITED STATES v. DUPAS 9075
In summary, the district court did not plainly err by impos-
ing the two conditions of supervised release that Defendant
challenges on appeal. But under our holding in Ameline, a
limited remand of Defendant’s prison sentence is appropriate.
That remedy is not barred by the ex post facto principles artic-
ulated by the Supreme Court in Bouie and Rogers.

Conditions of supervised release AFFIRMED; sentence of
imprisonment REMANDED.