NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

JUL 26 2016

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 15-30043

Plaintiff - Appellee, D.C. No. 2:13-cr-00187-TSZ-1

v.

MEMORANDUM*

JAMAAL JOHNATHAN BOMBER,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Argued and Submitted June 9, 2016 Seattle, Washington

Before: EBEL,** PAEZ, and BYBEE, Circuit Judges.

Defendant-Appellant Jamaal Bomber challenges a supervised release

condition that prohibits him from engaging in any occupation that exposes him

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable David M. Ebel, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. directly or indirectly to minors, unless approved in advance by his probation

officer. For the following reasons, we find Bomber’s challenge is foreclosed by

the appeal waiver in his plea agreement. Accordingly, we dismiss his appeal.

Law enforcement authorities arrested Bomber for engaging in drug- and sex-

trafficking. Bomber pleaded guilty to federal drug possession and distribution

charges. As part of Bomber’s plea agreement, the U.S. Attorney’s Office

dismissed its federal sex-trafficking charge, and the local district attorney

prosecuted those sex-trafficking offenses in Washington state court. Even so,

Bomber’s amended federal presentence report included facts pertaining to the then-

pending state charge for the sex trafficking of a minor.

At the sentencing hearing, the district court stated that it was “not going to

take into account what is happening in state court” when imposing Bomber’s

federal sentence. Nonetheless, the district court imposed a supervised release

condition (“condition four”) that provided that Bomber “may not engage in any

paid occupation or volunteer service that exposes him/her, either directly or

indirectly, to minors, unless approved in advance by the probation officer.”

Bomber’s appeal of that supervised condition is covered by the appellate

waiver contained in his plea agreement. See United States v. Mendez-Gonzalez,

697 F.3d 1101, 1103-04 (9th Cir. 2012). Ordinarily, that waiver would end our

2 inquiry. Bomber, however, invokes the exception that “[a]n appeal waiver will not

apply if . . . the sentence violates the law.” United States v. Bibler, 495 F.3d 621,

624 (9th Cir. 2007). To decide whether the “illegal sentence” exception applies

here, we must consider the substance of Bomber’s appeal. See Id.

Under that exception, “the phrase ‘illegal sentence’ has a precise legal

meaning.” United States v. Vences, 169 F.3d 611, 613 (9th Cir. 1999) (quoting

United States v. Fowler, 794 F.2d 1446, 1449 (9th Cir. 1986)). “A sentence is

illegal if it exceeds the permissible statutory penalty for the crime or violates the

Constitution.” Bibler, 495 F.3d at 624. Overstepping a maximum statutory prison

term is not the only way a sentence can “exceed[] the permissible statutory

penalty.” Id. For instance, an order to pay restitution will exceed the permissible

statutory penalty if it violates the substantive requirements of the statute governing

such orders—the Mandatory Victims Restitution Act (“MVRA”), 18 U.S.C.

§ 3663A. See United States v. Gordon, 393 F.3d 1044, 1050 (9th Cir. 2004).

Accordingly, in the supervised release context, we have looked to the

substantive requirements of the statutes governing supervised release

conditions—namely, 18 U.S.C. §§ 3583(d) and 3563(b)—to determine whether a

condition exceeds the permissible statutory penalty. See Mendez-Gonzalez, 697

F.3d at 1104; United States v. Watson, 582 F.3d 974, 982-84, 987 (9th Cir. 2009)

3 (finding that a supervised release condition was not illegal, for purposes of the

appeal waiver exception, because it complied with 18 U.S.C. § 3583(d)).

“Whether a supervised release condition illegally exceeds the permissible statutory

penalty or violates the Constitution is reviewed de novo.” Watson, 582 F.3d at

981.

In this case, the controlling statute is Section 3563(b)(5), which governs

conditions of supervised release that impose occupational restrictions. See 18

U.S.C. § 3583(d) (incorporating Id. § 3563(b)). Section 3563(b)(5) provides that a

district court can only impose an occupational restriction that limits a defendant’s

engagement “in a specified occupation, business, or profession bearing a

reasonably direct relationship to the conduct constituting the offense.” (emphasis

added).

The parties advance competing interpretations of the “reasonably direct

relationship” requirement, neither of which comports with the plain language of

Section 3563(b)(5). Section 3563(b)(5), however, occupies a middle ground

between the parties’ positions. Under the plain language of the statute, the

appropriate inquiry looks not to the legal elements of an offense, nor to a

defendant’s broader related activities or tendencies, but rather to how the defendant

committed the offense of conviction. Under that inquiry, an employment

4 restriction is permissible only if a sufficient nexus exists between the restricted

occupations and the defendant’s offense conduct—i.e., a reasonably direct

relationship to the conduct that constituted that offense. See Id.

Bomber’s federal convictions were for drug possession and distribution.

Under Section 3563(b)(5), any evidence of exploitation of teenage sex workers that

is untethered to Bomber’s drug activities is insufficient to establish a reasonably

direct relationship between the offense conduct and employment allowing

interaction with minors. Consequently, condition four is lawful only if the record

establishes that Bomber’s prostitution (or other sexual exploitation, mistreatment,

or manipulation) of juveniles played a role in his distribution or possession of

drugs (or vice versa).

Two facts in the record establish the requisite link here. The amended

presentence investigation report (“PSR”)1 noted that witnesses stated that Bomber

sold drugs and that he encouraged minors to supplement their income by preparing

1 The facts provided in the PSR are properly before us because Bomber’s attorney did not specifically object to those paragraphs of the presentence report. See United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (“Of course, the district court may rely on undisputed statements in the [presentence report] at sentencing.”). Moreover, although the district court stated it would not consider the state sex-trafficking charge and its underlying facts in sentencing Bomber, this fact is independently relevant to Bomber’s federal drug-trafficking charge. Finally, although the government has not chosen, on appeal, to reassert its previous reliance on this fact, “we may affirm on any ground supported by the record.” United States v. Nichols, 464 F.3d 1117, 1122 (9th Cir. 2006) (quotation omitted).

5 and selling drugs for him. Am. PSR ¶ 12. The report also indicated that at the

time of his arrest, Bomber was found in a room that contained cocaine base

(crack), a digital scale, and a naked sixteen-year-old girl. Am. PSR ¶ 15.

Together, the facts underlying Bomber’s drug-trafficking convictions

provide a sufficient nexus between the conduct constituting his federal drug

offenses and the court’s imposition of a supervised release restriction requiring

probation to pre-approve employment involving exposure to minors. Therefore,

supervised release condition four does not “exceed[] the permissible statutory

penalty for the crime,” and Bomber’s appeal waiver applies in full force.2 See

Bibler, 495 F.3d at 624.

DISMISSED.

2 We have considered the remainder of Bomber’s statutory and constitutional arguments concerning the legality of supervised release condition four, and found them unavailing.

6

FILED

United States v. Bomber, 15-30043

JUL 26 2016

BYBEE, Circuit Judge, concurring in the judgment: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I write separately to express my dissatisfaction with the state of circuit law

regarding appeal waivers. Bomber signed a plea agreement waiving his right to

appeal his sentence. Yet in order to determine whether Bomber’s sentence

“exceeds the permissible statutory penalty for the crime” and thus constitutes an

“illegal sentence” exempt from his appeal waiver, see United States v. Bibler, 495

F.3d 621, 624 (9th Cir. 2007), our case law requires us to undertake what is

essentially a merits review of Bomber’s sentence, see, e.g., United States v.

Watson, 582 F.3d 974, 981–85 (9th Cir. 2009). Such a detailed inquiry—except to

verify that the sentence does not exceed the statutory maximum, Bibler, 495 F.3d

at 624—defeats the purpose of an appeal waiver. I would enforce the appeal

waiver here without discussing the merits of the supervised release condition.