United States v. Jamaal Bomber

NOT FOR PUBLICATION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-

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…

concurring in the judgment:

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 *815 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.

MEMORANDUM **

Defendant-Appellant Jamaal Bomber challenges a supervised release condition that prohibits him from engaging in any occupation that exposes him 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 agree *813 ment, 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…