NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10282
Plaintiff-Appellee, D.C. No.
4:17-cr-01622-CKJ-DTF-1
v.
ADAM STARGAZER, AKA Damon MEMORANDUM*
Alexander Grey, AKA Dale Richard Slack,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted December 14, 2021**
Before: WALLACE, CLIFTON, and HURWITZ, Circuit Judges.
Adam Stargazer appeals from the district court’s judgment revoking his
supervised release for the second time. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
Stargazer first contends that, at his initial appearance, the magistrate judge
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violated his right to due process by failing to comply with Federal Rule of
Criminal Procedure 32.1(a)(3). We need not resolve the parties’ dispute over the
standard of review that applies to this claim because, even adopting the more
favorable standard urged by Stargazer, any error was harmless. The record reflects
that, by the time of the next hearing, Stargazer was aware of the alleged violation,
had counsel, and wanted to waive his right to a preliminary hearing. See Fed. R.
Crim. P. 32.1(a)(3), (b)(1)(A).
Stargazer next argues that the district court erred by revoking his term of
supervised release because the condition that he admitted to violating is
impermissibly vague. The challenged condition required that Stargazer “refrain
from any unlawful use of a controlled substance” and set forth that “[t]he use or
possession of marijuana, even with a physician’s certification, is not permitted.”
Contrary to Stargazer’s contention, this condition is not “so vague that it fails to
provide people of ordinary intelligence with fair notice of what is prohibited.”
United States v. Sims, 849 F.3d 1259, 1260 (9th Cir. 2017).
Finally, Stargazer asserts on appeal for the first time that the district court
was required to determine whether his admitted use of marijuana was compliant
with state law because, if his use was compliant, the government was prohibited
from expending funds to revoke his supervised release under United States v.
McIntosh, 833 F.3d 1163 (9th Cir. 2016). This claim is unpersuasive because
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Stargazer offers no support for his argument that he complied with state law, and
our precedent does not support extending McIntosh to a supervised release
revocation proceeding. See United States v. Nixon, 839 F.3d 885, 888 (9th Cir.
2016) (because McIntosh only applies to “the [Department of Justice’s] ability to
use certain funds to pursue individual prosecutions,” the district court did not abuse
its discretion by refusing to modify the conditions of probation to permit defendant
to use marijuana for medical purposes); see also United States v. Soto-Olivas, 44
F.3d 788, 790 (9th Cir. 1995) (district courts have “wide discretion in fashioning a
defendant’s obligations during a term of supervised release” and may prohibit
activity that “may not even be a crime”).
AFFIRMED.
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