FILED
NOT FOR PUBLICATION
DEC 28 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10296
Plaintiff-Appellee, D.C. No.
3:18-cr-08173-SMB-1
v.
BRETT ALLYN BEGAY, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Susan Brnovich, District Judge, Presiding
Argued and Submitted December 11, 2020
San Francisco, California
Before: W. FLETCHER, IKUTA, and VANDYKE, Circuit Judges.
Special concurrence by Judge IKUTA; Concurrence by Judge VANDYKE
Brett Allyn Begay challenges his sentence for abusive sexual contact of a
child on an Indian reservation, in violation of 18 U.S.C. §§ 1153, 2244(a)(5), and
2246. Though Begay waived his right to appeal in his plea agreement, we have
jurisdiction to hear constitutional challenges to the sentence. See United States v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Bibler, 495 F.3d 621, 624 (9th Cir. 2007). Begay challenges as unconstitutional
three special conditions attached to his supervised release. We affirm.
1. Special Conditions 11 and 12: We review these conditions de novo
because Begay objected to them at sentencing. United States v. Aquino, 794 F.3d
1033, 1036 (9th Cir. 2015). Begay argues that they unconstitutionally infringe his
protected liberty interests, violate his rights to travel and associate, and are vague
and overbroad. We hold that these conditions are constitutional.
In limiting Begay’s contact with children, including his own if and when he
has them, special condition 11 closely resembles other conditions imposed on
those who commit sex crimes against children. See, e.g., United States v. Bee, 162
F.3d 1232, 1235–36 (9th Cir. 1998) (imposing a similar restriction on contact with
children, “unless approved by [the defendant’s] probation officer”). While special
condition 11 lacks a probation officer exception, this distinction is not salient
because Begay currently lacks a protected liberty interest in associating with any
children. If circumstances change—for example, if Begay has his own
children—he may petition the court to modify the condition. See 18 U.S.C.
§ 3583(e)(2); United States v. Gross, 307 F.3d 1043, 1044 (9th Cir. 2002). We
express no view on whether and in what circumstances the condition should be
modified.
2
While condition 12 significantly limits Begay’s contact with his family, such
limitations may be appropriate where the court finds that “a defendant has a
proclivity for sexual violations of familial relationships.” United States v. Wolf
Child, 699 F.3d 1082, 1099 (9th Cir. 2012). Here, the judge explicitly noted that
Begay’s crimes against his niece had “violated the family trust.” Moreover, the
district court judge modified this condition at sentencing to clarify that it did not
“apply to [Begay’s] mother or adult siblings.”
2. Special Condition 13: We review this special condition for plain error
because Begay did not object to it either in his sentencing memorandum or at
sentencing. United States v. Johnson, 626 F.3d 1085, 1088 (9th Cir. 2010). We
hold that special condition 13 is unconstitutionally vague and overbroad but that it
is not plainly erroneous.
A condition is unconstitutionally vague in violation of due process if its
terms are “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) (citation omitted); see, e.g., United States v. Hall, 912 F.3d 1224,
1226 (9th Cir. 2019) (per curiam) (holding that a condition permitting the
defendant to contact his son only for “normal familial relations” was
unconstitutionally vague). A vague and overbroad condition “cannot be ‘saved’
3
merely because the government promises to enforce it in a narrow manner.”
United States v. Soltero, 510 F.3d 858, 867 n.10 (9th Cir. 2007) (per curiam).
Special condition 13 prohibits Begay from “go[ing] to, or remain[ing] at,
any place where [he] know[s] children under the age of 18 are likely to be,
including parks, schools, playgrounds, and childcare facilities.” The condition is
not limited to the four examples; it only “includ[es]” them. This condition thus
may be read as prohibiting Begay from going to “any” place where Begay knows
children are “likely to be”—including a gas station, a grocery store, a church, or
even a McDonalds.
We have upheld conditions that prohibit sex offenders from loitering near
“school yards, parks, playgrounds, arcades, or other places primarily used by”
children. Bee, 162 F.3d at 1235–36 (emphasis added); see also United States v.
Daniels, 541 F.3d 915, 928 (9th Cir. 2008). The condition here sweeps far more
broadly because it prohibits Begay from “go[ing]” to “any” place where children
are “likely to be.” Nor does the condition permit the probation officer to clarify its
scope. By requiring Begay to guess at his peril the probability that children will be
in a location, the condition is unconstitutionally vague and overbroad.
However, we do not correct the error in special condition 13 because we
hold that the district court did not commit plain error. See Johnson v. United
4
States, 520 U.S. 461, 466–67 (1997). The government insists that it will not
enforce this condition in an overbroad manner, but this promise does not save the
condition. See Soltero, 510 F.3d at 867 n.10. The district court may, of course,
modify the wording of this condition, but we will not direct it to do so.
AFFIRMED.
5
FILED
U.S. v. Begay, No. 19-10296 DEC 28 2020
Ikuta, J. specially concurring. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I would enforce Begay’s appeal waiver and dismiss the appeal without
reaching the merits of his claims.
In his plea agreement, Begay waived “any right to file an appeal that
challenges . . . any aspect of the [his] sentence.” Yet, he now appeals the
conditions of his supervised release, which are undeniably within the scope of his
appeal waiver. See United States v. Joyce, 357 F.3d 921, 923 (9th Cir. 2004).
We have held that an appeal waiver does not apply if a sentence “exceeds
the permissible statutory penalty for the crime or violates the Constitution.”
United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). Begay does not raise a
colorable claim that Special Condition 13 is unconstitutionally void for vagueness.
A law is not unconstitutionally vague merely because it lacks “mathematical
certainty.” Grayned v. City of Rockford, 408 U.S. 104, 110 (1972). And “the
Constitution does not require impossible standards,” United States v. Petrillo, 332
U.S. 1, 7 (1947), or expect “perfect clarity and precise guidance,” Holder v.
Humanitarian L. Project, 561 U.S. 1, 19 (2010).1 In prohibiting Begay from
1
The concurrence acknowledges that the Constitution does not require
“mathematical certainty,” but urges that Begay is “entitled” to more precision and
specificity in Special Condition 13. Concurrence at 2. But a supervised release
condition is not impermissibly vague when it fails to provide more clarity than
what the Constitution requires.
frequenting “any place where you know children under the age of 18 are likely to
be, including parks, schools, playgrounds, and childcare facilities,” Special
Condition 13 prohibits Begay from frequenting places that he knows are as likely
to include children as are parks, schools, playgrounds, and childcare facilities.
Moreover, any concern that the condition “fails to provide people of ordinary
intelligence” an understanding of what conduct it prohibits is ameliorated when the
condition contains a scienter requirement, as it does in this case. See Hill v.
Colorado, 530 U.S. 703, 732 (2000).
Nor does Begay raise a colorable claim that Special Condition 13 is
otherwise illegal under Bibler, given that he does not argue that the condition
exceeds the permissible statutory penalty for the crime. 495 F.3d at 624. To the
extent our cases suggest that an appeal waiver does not apply so long as a
defendant raises any claim of error, see United States v. Dailey, 941 F.3d 1183,
1188–89 (9th Cir. 2019), they are mistaken. Such a merits inquiry defeats the
purpose of an appeal waiver, given that “[t]he whole point of a waiver . . . is the
relinquishment of claims regardless of their merit.” United States v. Nguyen, 235
F.3d 1179, 1184 (9th Cir. 2000), abrogated on other grounds as recognized by
United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011) (emphasis in
original). Moreover, such an approach makes no distinction between a defendant
who waives the right to appeal and one who does not. Where a defendant
“knowingly and voluntarily waived the right to appeal every aspect of his
sentence,” and where “the government upheld its end of the deal,” the government
“is entitled to the benefit of its bargain.” United States v. Cortez-Arias, 425 F.3d
547, 548 (9th Cir. 2005) (emphasis in original). Accordingly, I would dismiss
Begay’s claims as barred by the appeal waiver.
FILED
USA v. Begay, No. 19-10296
DEC 28 2020
VANDYKE, Circuit Judge, concurring. MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur, and write separately only to emphasize the sweeping breadth of
special condition 13 as written. It blanketly prohibits Begay from going to “any
place where you know children … are likely to be.” The memorandum disposition
is correct that the four examples listed in the condition don’t cabin its comprehensive
scope, because the condition expressly states those are merely examples of what the
prohibition “includ[es],” not limitations on the scope of the condition. See also
Antonin Scalia & Brian A. Garner, Reading Law: The Interpretation of Legal Texts
202–05 (2012) (observing that the ejusdem generis canon is not applicable to this
circumstance; “[a]uthorities have traditionally agreed that the specific-general
sequence is required, and that the rule does not apply to the general-specific
sequence”).
Everyone, including the government at oral argument, acknowledges that
special condition 13 couldn’t actually have been intended to prevent Begay from
walking up to the counter at a McDonald’s. But that is what it says. Because
everyone—including Begay—knows that children are likely to be at a McDonald’s.
Judge Ikuta’s reliance on Supreme Court cases stating that “mathematical
certainty” is not required to avoid a vagueness problem and that “the Constitution
does not require impossible standards,” is, respectfully, misplaced. First, if special
condition 13 was actually applied consistent with its plain text—prohibiting Begay
from going to “any place where you know children … are likely to be”—then that
condition itself requires an “impossible standard.” Which is why nobody seems to
want to read it as saying what it actually says. On the other hand, if it doesn’t mean
what it actually says, then who knows what it means? Does it prevent Begay from
going to a McDonald’s or a grocery store, or not? While everyone agrees that
“mathematical certainty” is not required, Begay is entitled to at least some clarity
about whether he can go to a McDonald’s or a grocery store or to church—all places
everyone “know[s] children … are likely to be.” As written, the only “mathematical
certainty” provided by condition 13 is that nobody thinks it should be read to say
what it, in fact, plainly says.
Special condition 13 should say what it means, not mean what everyone thinks
it should mean despite what it says.