Petition for Writ of Certiorari — Edward Wright, Petitioner v. United States

No.

In the Supreme Court of the United States

Edward Wright,

v.

Petitioner,

United States of America,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

Petition for a Writ of Certiorari

RENE L. VALLADARES

Federal Public Defender

*Lauren B. Torre

Assistant Federal Public Defenders

Office of the Federal Public Defender

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

Lauren_Torre@fd.org

*Counsel for Petitioner Edward Wright

Dated: April 6, 2022

Question Presented for Review

I.

Currently, the Circuits are split as to whether the standard federal

supervision condition requiring third-party risk notification is constitutional.

Some Circuits hold the condition is vague and allows the probation officer

unfettered discretion that implicates the defendant’s liberty interests in

violation of the non-delegation doctrine, while others hold that the condition

withstands constitutional scrutiny. Is the standard federal supervision

condition requiring third-party risk notification unconstitutional for its

vagueness, overbreadth, and violation of the non-delegation doctrine?

i

Related Proceedings

In June 2020, Petitioner Edward Wright pled guilty, pursuant to a plea

agreement, to possession of child pornography (Count Two) under 18 U.S.C.

§§ 2252A(a)(5)(B), (b)(2) in United States v. Wright, No. 3:19-cr-00012-MMD-WGC

(D. Nev. June 4, 2020). The district court imposed 57-months in prison and a

lifetime term of supervised release. Petitioner’s Appendix (Pet. App.) B.

Mr. Wright appealed the denial of his motion to suppress and conditions of

supervised release. Specifically, Mr. Wright challenged the third-party risk

notification condition as unconstitutional. In an unpublished opinion, the Ninth

Circuit affirmed the denial of the motion to suppress and the imposition of the

challenged conditions of supervised release, including the risk notification

condition. United States v. Wright, No. 20-10303, 2022 WL 67341, at *1 (9th Cir.

Jan. 6, 2022); see Pet. App. A. Mr. Wright did not seek rehearing.

Mr. Wright remains in federal custody of the Bureau of Prisons, with an

estimated release date of March 14, 2023.

ii

Table of Contents

Question Presented for Review ...................................................................................... i

Related Proceedings....................................................................................................... ii

Table of Contents .......................................................................................................... iii

Table of Authorities ...................................................................................................... iv

Petition for Certiorari .................................................................................................... 1

Opinions Below .............................................................................................................. 1

Jurisdictional Statement ............................................................................................... 1

Relevant Constitutional and Sentencing Guideline Provisions................................... 2

Introduction ................................................................................................................... 4

Statement of the Case ................................................................................................... 6

Reasons for Granting the Petition ................................................................................ 6

I. The third-party risk notification condition’s language is vague and overbroad

rendering it unconstitutional and in violation of the non-delegation doctrine. 7

II.This Court should resolve the circuit split as to whether the third-party risk

notification is unconstitutional........................................................................... 9

Conclusion .................................................................................................................... 17

Appendix A ................................................................................................................... 1a

United States v. Wright, No. 20-10303, 2022 WL 67341,

(9th Cir. Jan. 6, 2022) (unpublished), Memorandum affirming sentence

Appendix B ................................................................................................................... 8a

United States v. Wright, No. 3:19-cr-00012-MMD-WGC, Dkt. 90

(D. Nev. Sept. 9, 2020) (unpublished), Final Judgment of Conviction

iii

Table of Authorities

U.S. Constitution

U.S. Const. amend. V ............................................................................................... 2, 5

U.S. Const. amend. VI ............................................................................................. 2, 5

U.S. Const. Art. I, § 1 ........................................................................................... 2, 4, 5

Federal Cases

J.W. Hampton, Jr., & Co. v. United States, 276 U.S. 394 (1928) .............................. 5

Mistretta v. United States, 488 U.S. 361 (1989) ..................................................... 4, 5

United States v. Boles, 914 F.3d 95 (2d Cir.) ........................................................ 9, 10

United States v. Cabral, 926 F.3d 687 (10th Cir. 2019) ............................. 8, 9, 11, 16

United States v. Evans, 883 F.3d 1154 (9th Cir. 2018) ................................ 13, 14, 16

United States v. Gibson, 998 F.3d 415, 423 (9th Cir. 2021),

cert. denied, 142 S. Ct. 832 (2022) ..................................................... 13, 14, 15, 16

United States v. Henderson, ___ F.4th ___, No. 21-50526,

2022 WL 871882 (5th Cir. Mar. 24, 2022) ........................................................... 12

United States v. Janis, 995 F.3d 647 (8th Cir. 2021) ................................................ 12

United States v. Magdirila, 962 F.3d 1152 (9th Cir. 2020) .................... 13, 14, 15, 16

United States v. Martinez, 860 F. App’x 584 (10th Cir. 2021) ........................... 11, 12

United States v. Pendleton, 789 F. App’x 97 (10th Cir. 2019) .................................. 11

United States v. Peterson, 248 F.3d 79 (2d Cir. 2001) ........................................... 9, 10

United States v. Rasheed, 981 F.3d 187, 199 (2d Cir. 2020) .............................. 10, 11

United States v. Robertson, 948 F.3d 912 (8th Cir. 2020) .................................. 12, 13

United States v. Thompson, 777 F.3d 368 (7th Cir. 2015) ......................................... 7

United States v. Traficante, 966 F.3d 99 (2d Cir. 2020) ..................................... 10, 11

iv

Federal Statutes

18 U.S.C. § 3231 ........................................................................................................... 1

18 U.S.C. § 3742 ........................................................................................................... 1

28 U.S.C. § 1254 ........................................................................................................... 1

28 U.S.C. § 1291 ........................................................................................................... 1

Federal Rules

Sup. Ct. R. 10 ............................................................................................................... 4

Sup. Ct. R. Rule 13.1 ................................................................................................... 1

United States Sentencing Guidelines

U.S.S.G. § 5D1.3 ............................................................................................ 2, 5, 7, 15

U.S.S.G. § 5F1.5 ....................................................................................................... 8, 9

v

Petition for Certiorari

Petitioner Edward Wright respectfully petitions for a writ of certiorari to

review the memorandum of the United States Court of Appeals for the Ninth

Circuit.

Opinions Below

The Ninth Circuit opinion denying appellate relief is not published in the

Federal Reporter but is reprinted at: United States v. Wright, No. 20-10303, 2022

WL 67341, at *1 (9th Cir. Jan. 6, 2022). Pet. App. A. The district court’s final

judgment is unpublished and not reprinted. Pet. App. B.

Jurisdictional Statement

The Ninth Circuit entered the final order affirming the denial of the motion

to suppress and imposition of conditions of supervised release on January 6, 2022.

Pet. App. A. The district court had jurisdiction over the initial criminal indictment

under 18 U.S.C. § 3231. The Ninth Circuit had jurisdiction over the final judgment

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254.

This petition is timely per Supreme Court Rule 13.1 as it is filed within 90

days from the lower court’s judgment.

1

Relevant Constitutional and Sentencing Guideline Provisions

1.

U.S. Const. Art. I, § 1:

All legislative Powers herein granted shall be vested in a Congress of

the United States, which shall consist of a Senate and House of

Representatives.

2.

U.S. Const. amend. V:

No person shall be held to answer for a capital, or otherwise infamous crime,

unless on a presentment or indictment of a Grand Jury, except in cases

arising in the land or naval forces, or in the Militia, when in actual service in

time of War or public danger; nor shall any person be subject for the same

offence to be twice put in jeopardy of life or limb; nor shall be compelled in

any criminal case to be a witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor shall private property be

taken for public use, without just compensation.

3.

U.S. Const. amend. VI:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and

public trial, by an impartial jury of the State and district wherein the crime

shall have been committed, which district shall have been previously

ascertained by law, and to be informed of the nature and cause of the

accusation; to be confronted with the witnesses against him; to have

compulsory process for obtaining witnesses in his favor, and to have the

Assistance of Counsel for his defence.

4.

U.S.S.G. § 5D1.3(c). Conditions of Supervised Release (2018), provides in

relevant part:

(c) “Standard” Conditions (Policy Statement)

The following “standard” conditions are recommended for supervised

release. Several of the conditions are expansions of the conditions

required by statute:

***

(12) If the probation officer determines that the defendant poses a risk

to another person (including an organization), the probation officer

may require the defendant to notify the person about the risk and the

defendant shall comply with that instruction. The probation officer

2

may contact the person and confirm that the defendant has notified

the person about the risk.

3

Introduction

Petitioner Wright was ordered to serve lifetime supervision with 5 mandatory

conditions, 13 standard conditions, and 5 special conditions he must follow after he

completes his prison term. On direct appeal to the Ninth Circuit Court of Appeals,

Mr. Wright challenged multiple conditions as unconstitutional that the Ninth

Circuit affirmed. One condition in particular—the third-party risk notification

condition—warrants this Court’s careful review. Sup. Ct. R. 10.

The standard risk notification condition is unconstitutionally vague,

overbroad, and violates the non-delegation doctrine. The condition delegates to

probation officers the authority to require defendants to notify third parties about

any risks the officers determine defendants may pose and authority to confirm

defendants have done so. Pet. App. B: 11a (standard condition 12). The condition

delegates this authority without identifying any existing risk, without requiring a

nexus between the risk and the underlying offense, without establishing the burden

of proof required to establish the existence of any future risks, without providing

intelligible principles to measure and constrain the notification procedures for any

future risks, and without identifying third parties to be notified. Pet. App. B: 11a.

This condition also exposes defendants to criminal sanctions based on the

unfettered discretion of probation officers without guidance for its application,

violating the Article I non-delegation doctrine. See U.S. Const. art. I, § 1; Mistretta

v. United States, 488 U.S. 361, 372 (1989) (“So long as Congress ‘shall lay down by

legislative act an intelligible principle to which the person or body authorized to

4

[exercise the delegated authority] is directed to conform, such legislative action is

not a forbidden delegation of legislative power.’”) (quoting J.W. Hampton, Jr., & Co.

v. United States, 276 U.S. 394, 408 (1928)).

The Sentencing Commission advocates the routine imposition of the standard

third-party risk-notification. See U.S.S.G. § 5D1.3(c). And district courts

nationwide follow this recommendation, as the condition is printed on the judicial

form used for final criminal judgments. 1 The widespread imposition of the

condition subjects thousands of defendants to an unconstitutionally vague and

overbroad supervision condition. See U.S. Const. amends. V, VI; Johnson v. United

States, 576 U.S. 591, 595 (2015) (holding vagueness exists when a provision “fails to

give ordinary people fair notice of the conduct it punishes,” or is “so standardless

that it invites arbitrary enforcement”).

By affirming the imposition of the standard third-party risk notification here,

the Ninth Circuit perpetuated an unconstitutional condition and deepened the

circuit split. The Second and Tenth Circuits appropriately hold the risk notification

condition is unconstitutional, while the Fifth and Eighth Circuits have affirmed the

condition. Review by this Court is necessary to resolve the circuit split.

1 See Admin. Office of U.S. Courts, Forms, AO 245B - Judgment in a Criminal

Case; AO Form 245C - Amended Judgment in a Criminal Case; AO Form 245D Judgment in a Criminal Case (Revocation of Supervised Release Violation) (eff.

Sept. 1, 2019), available at https://www.uscourts.gov/services-forms/forms?k=

judgment+in+a+criminal+ case&c=All.

5

Statement of the Case

In February 2019, Mr. Wright was federally charged with receipt of child

pornography under 18 U.S.C. § 2252A(a)(2), (b)(1), and possession of child

pornography under 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2).

In June 2020, Mr. Wright pled guilty to possession of child pornography

pursuant to a plea agreement. In September 2020, Mr. Wright was sentenced to 57

months’ imprisonment and a lifetime term of supervised release. Pet. App. B. The

district court imposed the standard supervised release conditions recommended by

the Sentencing Commission without objection by Mr. Wright.

Mr. Wright timely appealed and the Ninth Circuit affirmed his sentence

finding, in part, that the standard third-party risk notification condition was legal.

Pet. App. A. Mr. Wright did not seek rehearing.

Reasons for Granting the Petition

In affirming the imposition of the third-party risk condition, the Ninth

Circuit deepened the existing circuit split. A large population of criminal

defendants are subject to the same unconstitutionally vague and overbroad

supervision condition and will be subject to it in the future. Thus, guidance from

this Court is necessary to protect and preserve defendants’ constitutional rights and

ensure courts are adjudicating those rights in accord with the Constitution and this

Court’s precedent.

6

I.

The third-party risk notification condition’s language is vague

and overbroad rendering it unconstitutional and in violation of

the non-delegation doctrine.

Mr. Wright’s risk notification condition permits the probation officer to

require the defendant to give notice to yet-to-be-identified third parties of yet-to-be

identified risks the probation officer identifies through yet-to-be identified means.

The condition at issue here specifically requires that, if a probation officer

determines Mr. Wright poses an unidentified risk to an unidentified person or

organization:

(1)

the probation officer may require Mr. Wright to notify that

unidentified person or organization about the unidentified risk

posed;

(2)

Mr. Wright must comply with the probation officer’s notification

instruction; and

(3)

the probation officer may contact the unidentified person or

organization to confirm compliance.

Pet. App. B: 11a.

This is a standard condition promulgated by the Sentencing Commission that

was amended in an attempt to “address criticism by the Seventh Circuit regarding

potential ambiguity in how the condition is currently phrased.” See U.S.S.G.

§ 5D1.3(c)(12) (amend. 803 eff. Nov. 1, 2016) (citing United States v. Thompson, 777

F.3d 368, 379 (7th Cir. 2015)). The Seventh Circuit found the prior version

requiring the notification to third parties of risks that may be posed by the

defendant’s “criminal record or personal history or characteristics” was “riddled

with ambiguities” and impermissibly vague. Thompson, 777 F.3d at 37.

7

Despite the Commission’s efforts to fix the condition, it remains vague

because it lacks any means for Mr. Wright or his probation officer to identify an

alleged risk, how to assess whether a risk warrants notification, or how to identify

the parties who would be affected by the risk. It is also overbroad in that it extends

to everyone, including Mr. Wright’s family and future employers—a protected entity

the Sentencing Commission was otherwise careful to carve out special requirements

for before a court or probation officer could interfere. See U.S.S.G. § 5F1.5 (allowing

occupational restrictions only where district court makes specific findings linking

defendant’s occupation to “the conduct relevant to the offense of conviction” and

establishing that such a restriction is “reasonably necessary to protect the public”).

Given the lack of guidance to probation officers to determine the condition’s

application, Mr. Wright’s liberty interests are significantly affected by the probation

officer’s discretion. And because “allowing a probation officer to make the decision

to restrict a defendant’s significant liberty interest constitutes an improper

delegation of the judicial authority to determine the nature and extent of a

defendant’s punishment,” the condition surpasses the proper delegation of tasks

probation officers may assume. United States v. Cabral, 926 F.3d 687, 697 (10th

Cir. 2019).

As written, the condition grants the probation officer broad discretion to

make decisions that could infringe on Mr. Wright’s liberty interests, an improper

delegation of judicial power. The condition’s language is so vague and overbroad

8

that “it would be impossible [] to delineate all the ways in which the condition may

or may not be permissibly enforced.” Cabral, 926 F.3d at 698.

II.

This Court should resolve the circuit split as to whether the

third-party risk notification is unconstitutional.

A line is now firmly drawn between the federal circuit courts, with the

Second and Tenth Circuits holding the standard risk condition is unconstitutional

as written, and the Fifth, Eighth, and Ninth Circuits holding it is constitutional.

Given this divide, this Court’s guidance is necessary.

The Second and Tenth Circuits hold the condition is

unconstitutional.

In United States v. Boles, 914 F.3d 95, 110-11 (2d Cir.), cert. denied, 139 S.

Ct. 2659 (2019), the Second Circuit reviewed the identical risk condition imposed on

Mr. Wright. Like Mr. Wright, Boles argued the condition was too vague to be

related to any supervision goal because the district court did not define any risk at

the time of sentencing and therefore gave the probation officer too much discretion

in assessing the existence of any such risk and who should be notified. Id. at 111.

The Second Circuit agreed on both fronts. Id.

The Second Circuit found that the condition improperly permitted warning

employers about risks unrelated to Boles’s federal conviction given that

“occupational restrictions must be related to the offense of conviction.” Boles, 914

F.3d at 112 (citing United States v. Peterson, 248 F.3d 79, 86 (2d Cir. 2001) (per

curiam); see also U.S.S.G. § 5F1.5 (Occupational Restrictions). The condition also

improperly gave the probation officer unfettered discretion on issues concerning

employment notification, a matter district courts must determine. Boles, 914 F.3d

9

at 112 (citing Peterson, 248 F.3d at 86). For these reasons, the Second Circuit

vacated the risk condition and remanded to the district court for clarification as to

the scope of the condition. Boles, 914 F.3d at 112.

Following Boles, the District Court for the Western District of New York

entered a standing district-wide order modifying the standard risk-notification

condition that reads:

“If the court determines in consultation with your

probation officer that, based on your criminal record,

personal history and characteristics, and the nature and

circumstances of your offense, you pose a risk of

committing further crimes against another person (including

an organization), the probation officer may require you to notify

the person about the risk and you must comply with that

instruction. The probation officer may contact the person and

confirm that you have notified the person about the risk.”

United States v. Rasheed, 981 F.3d 187, 199 (2d Cir. 2020) (quoting Am. Standing

Order in re: United States v. Boles (W.D.N.Y. Mar. 22, 2019) [hereinafter “standing

order”] (emphasis added).

The standing order’s revisions to the standard risk-notification condition

cured two central constitutional issues. First, the revisions limited the condition to

risks of future crimes based on the defendant’s criminal record, personal history and

characteristics, and the nature and circumstances of the underlying federal

offense—as determined by the court. Rasheed, 981 F.3d at 199. Second, the nondelegation doctrine was no longer violated because the probation officer must

consult the district court before the condition is triggered. Id.; see United States v.

Traficante, 966 F.3d 99, 104 (2d Cir. 2020), cert. denied, 141 S. Ct. 2634, (2021)

10

(explaining that the standing order “clarifies that any obligation to notify at-risk

individuals is wholly contingent on a subsequent determination by the district court

that the supervisee poses a specific risk to such persons.” And “[g]iven the

conditional nature of the revised condition, the standing order can have no impact

on Traficante unless and until the district court makes such a finding.”). 2

The Tenth Circuit similarly struck the standard risk condition resting its

decision on the non-delegation doctrine. In Cabral, 926 F.3d at 699, the Tenth

Circuit found the risk-notification condition grants the “probation officer decisionmaking authority that could infringe on a wide variety of liberty interests,”

rendering it “an improper delegation of judicial power.” Among the liberty interests

Cabral identified susceptible to impermissible intrusion were the defendant’s

fundamental familial interests and employment interests. Id. at 698-99. It

therefore struck the condition. Id.

After Cabral, the government joined in requests seeking new judgments

omitting the risk-notification condition of supervised release. See, e.g., United

States v. Pendleton, 789 F. App’x 97, 98 (10th Cir. 2019) (per curiam) (unpublished

disposition). The District of Colorado also revised its standard risk-notification

condition to require probation officers to first obtain district court approval before

notifying third parties of risks presented by defendants or directing defendants to

2 Because the standing order restates what courts are already authorized to

do, the Second Circuit subsequently held a defendant’s non-delegation challenge to

the condition issued in compliance with the standing order was not ripe for review.

Rasheed, 981 F.3d at 200.

11

do so. United States v. Martinez, 860 F. App’x 584, 585 (10th Cir. 2021)

(unpublished disposition).

The Fifth, Eighth, and Ninth Circuits affirm the risk

condition.

In contrast, the Fifth, Eighth, and Ninth Circuits are content with the lack of

limits for identifying risks and the carte blanche delegation to probation officers to

trigger the risk-notification to third parties without juridical guidance or

meaningful guidelines.

The Fifth Circuit affirmed the same standard risk condition in United States

v. Henderson, ___ F.4th ___, No. 21-50526, 2022 WL 871882 (5th Cir. Mar. 24, 2022).

There, Henderson argued “that the district court improperly delegated ‘the

imposition of the [risk-notification] condition’ to the probation officer,” and conceded

that he was subject to plain error review. Id. at *1. The Fifth Circuit held the

imposition of the condition was not a “clear or obvious” error because the Circuit

had not yet addressed the merits of the notification condition and whether it

constituted an improper delegation of judicial authority. Id. at *2. Finding no plain

error, the court affirmed. Id.

In United States v. Janis, 995 F.3d 647, 653 (8th Cir.), cert. denied, No. 21-68,

2021 WL 5284611 (U.S. Nov. 15, 2021), the Eighth Circuit declined to find the risknotification condition vague or a violation of the non-delegation doctrine. Janis

relied on a prior decision reviewed for plain error, United States v. Robertson, 948

F.3d 912, 920 (8th Cir.), cert. denied, 141 S. Ct. 298 (2020). Robertson addressed the

vagueness challenge rather circularly stating “the ‘scope of this condition can be

12

ascertained with sufficient ease,’ . . . because the probation officer will identify and

communicate the risk to” the defendant before the defendant has a duty to notify

anyone of the risk. 948 F.3d at 920. Robertson also disagreed with the nondelegation challenge because it had previously “held a special condition of

supervised release is an impermissible delegation of authority ‘only where the

district court gives an affirmative indication that it will not retain ultimate

authority over all of the conditions of supervised release.’” Id. Having found no

“affirmative indication” that “the district court disclaimed ultimate authority over”

supervision, the Eighth Circuit affirmed the condition as written.

Finally, the Ninth Circuit held in United States v. Gibson, 998 F.3d 415, 423

(9th Cir. 2021), cert. denied, 142 S. Ct. 832 (2022), that the risk notification

condition allows “limited discretion vested in the probation officer” and although the

condition “may be flexible, [] it is sufficiently certain to withstand constitutional

scrutiny.” Here, the Ninth Circuit affirmed Mr. Wright’s condition relying entirely

on Gibson. Pet. App. A; Gibson, 998 F.3d at 422–23. But Gibson (1) improperly

read absent language into the condition that (2) still does not resolve the

constitutional problems. Relying on its prior precedent, the Ninth Circuit

interpreted the condition “to limit the ‘risks’ to those “posed by the defendant’s

criminal record.” Id. at 422 (citing United States v. Magdirila, 962 F.3d 1152, 1159

13

(9th Cir. 2020), pet. for reh’g denied; 3 United States v. Evans, 883 F.3d 1154, 1159

(9th Cir. 2018)). The Gibson panel was mistaken for two reasons.

First, the Gibson panel erroneously believed the Ninth Circuit’s prior

Magdirila decision appropriately confined the scope of the risk that would be

subject to third-party notification. Magdirila considered a prior version of the risk

condition and a compilation of general orders from the Central District of California

modifying it. 4 The Ninth Circuit remanded with instructions that the district court

3 In his petition for rehearing, Magdirila noted he agreed with the Ninth

Circuit that the condition, as modified, allowed the probation officer to require him

to “notify specific persons and organizations of specific risks [he] posed” to third

parties, but requested the “criminal history” language be struck as it “was nearly

identical to and just as unconstitutionally vague as the notification condition”

language the court struck down in United States v. Evans, 883 F.3d 1154, 1163–64

(9th Cir. 2018). Appellant’s Petition for Panel Rehearing, United States v.

Magdirila, No. 18-50430, Dkt. 51 (9th Cir. June 23, 2020). In Evans, the Ninth

Circuit remanded a condition requiring the defendant to “notify third parties of

risks that may be occasioned by [his] criminal record or personal history or

characteristics.” Evans noted the Sentencing Commission amended the risk

condition to remove the ambiguous phrase “personal history or characteristics” and

to make clear that probation officers “may only require a defendant to notify specific

persons of specific risks that the defendant poses to those persons.” 883 F.3d at

1164.

4 The three risk conditions addressed in Magdirila were modified from the

standard condition and provided:

General Order Condition 14: “As directed by the probation officer, the

defendant shall notify third parties of risks that may be occasioned by

the defendant’s criminal record or personal history or characteristics,

and shall permit the probation officer to make such notifications and to

confirm the defendant's compliance with such notification

requirement,” . . .

14

“may wish to consider the language in United States Sentencing Guideline Manual

§ 5D1.3(c)(12)” (the version at issue in Gibson and here) “which suggests that a

defendant’s notification obligations should be limited to specific persons regarding

specific risks posed by the defendant’s criminal record.” 962 F.3d at 1159. Thus,

Magdirila did not simply remand to the district court with a blanket endorsement

of the Guidelines risk condition language. Magdirila instead remanded with a

proviso: any risk condition that is imposed using the Guidelines’ risk condition

language should be limited to (1) specific persons and (2) specific risks, (3) posed by

this defendant’s criminal record, (4) as crafted by the district court.

In Gibson, the Ninth Circuit overstated Magdirila’s holding. Gibson assumed

the Sentencing Commission’s current version of the risk condition, as written,

passed constitutional muster without requiring more information from the district

court to limit the notification provisions to specific persons of specific risks posed by

the defendant’s criminal record. Gibson, 998 F.3d at 422–23. Based on its

4. Specific Condition 2: “As directed by the probation officer, the

defendant shall notify specific persons and organizations of specific

risks and shall permit the probation officer to confirm the defendant’s

compliance with such requirement and to make such notifications”;

5. Standard Condition 14: “As directed by the probation officer, the

defendant must notify specific persons and organizations of specific

risks posed by the defendant to those persons and organizations and

must permit the probation officer to confirm the defendant’s

compliance with such requirement and to make such notifications.”

962 F.3d at 1156 (quoting United States District Court for the Central District of

California General Order 05-02).

15

misinterpretation of Magdirila, Gibson affirmed the unguided discretion the risk

condition delegates to probation officers.

Second, even with the interpretive gloss the Gibson decision placed on the

condition—reading in absent language that requires the risks be posed by the

defendant’s criminal record—the standard risk condition remains unconstitutional.

Finding that the condition is limited to “specific risks posed by the defendant’s

criminal record” is still vague. This added language does not identify the specific

risks. This added language does not put the probation officer “on clear notice of

what conduct will (and will not) constitute a supervised release violation.” Evans,

883 F.3d at 1164 (quoting United States v. Soltero, 510 F.3d 858, 867 n.10 (9th Cir.

2007)). Thus, this reading of the condition still “open[s] the door to boundless

scenarios implicating various liberty interests.” Cabral, 926 F.3d at 698.

This Court should resolve the circuit split.

“Few legislative or judicial guidelines prescribe the degree of clarity” that

supervised release conditions require. See Cohen, Neil, Informing probationer or

parolee of release conditions—Vague or incomprehensible conditions, Law of

Probation & Parole § 7:19 (2d Sept. 2021 update). When clarity is lacking as it is

here, this Court should provide it.

Neither the Sentencing Guidelines nor any judicial guidelines address the

vagueness, overbreadth, and delegation issues that cause confusion over this risk

notification condition. It remains a standard condition in all but the small minority

of districts who have modified its language. Given the ongoing circuit split, it

weighs disparately on defendants’ fundamental liberty interests, and for Mr.

16

Wright, it will weigh on him for life. This Court should grant certiorari to review

and provide the necessary clarity.

Conclusion

Petitioner Wright requests that the Court grant this petition for a writ of

certiorari.

Dated: April 6, 2022.

Respectfully submitted,

RENE L. VALLADARES

Federal Public Defender

/s/ Lauren B. Torre

Lauren B. Torre

Assistant Federal Public Defender

Office of the Federal Public Defender

411 E. Bonneville, Ste. 250

Las Vegas, Nevada 89101

(702) 388-6577

Lauren_Torre@fd.org

*Counsel for Edward Wright

17