In United States v. Reyes, --- F.4th --- No. 20-50016 (9th Cir. 2021), the Court vacated the supervised release portion of the sentence, affirmed the custodial portion, and remanded.
This is a SDCA case. At sentencing, without notice, the district court imposed a very broad Fourth waiver (search condition) that was not on the list of mandatory or discretionary conditions. Reyes objected, but was cut off by the judge.
On appeal, the Court reaffirmed that, under United States v. Wise, 391 F.3d 1027 (9th Cir. 2004), when a particular “condition of supervised release is not on the list of mandatory or discretionary conditions in the sentencing guidelines, notice is required before it is imposed, so that counsel and the defendant will have the opportunity to address personally its appropriateness.” Here, because there was no notice, the search condition was improper.
In reaching this conclusion, the Court rejected the government's arguments that plain-error review applied and that Wise had been overruled. The Court sent the case back to the district judge on a limited remand to redo the conditions of supervised release.
