United States v. Shawn Gementera

379 F.3d 596 UNITED STATES of America, Plaintiff-Appellee, v. Shawn GEMENTERA, Defendant-Appellant. No. 03-10103. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 11, 2004. Filed August 9, 2004. Arthur K. Wachtel, San Francisco, CA, argued the case for the appellant and was on the briefs. Maitreya Badami was also on the briefs. Kelley Brooke Snyder, U.S. Department of Justice, Washington, DC, argued the case for the appellee and was on the briefs. Kevin Ryan, United States Attorney, and Hannah Horsley and Anne-Christine Massullo, Assistant United States Attorneys, were also on the briefs. Elizabeth M. Falk, Office of the Federal Public Defender, San Francisco, CA, argued the case for amicus curiae Federal Public Defender for the Northern District of California and was on the briefs. Barry J. Portman, Federal Public Defender, was also on the briefs. Appeal from the United States District Court for the Northern District of California, Vaughn R. Walker, District Judge, Presiding. D.C. No. CR-01-00454-VRW. Before: O'SCANNLAIN, SILER, JR., * and HAWKINS, Circuit Judges. O'SCANNLAIN, Circuit Judge: 1 We must decide the legality of a supervised release condition…

We must decide the legality of a supervised release condition that requires a convicted mail thief to spend a day standing outside a post office wearing a signboard stating, “I stole mail. This is my punishment.”

I

Shawn Gementera pilfered letters from several mailboxes along San Francisco’s Fulton Street on May 21, 2001. A police officer who observed the episode immediately detained Gementera and his partner in crime, Andrew Choi, who had been stuffing the stolen letters into his jacket as Gementera anxiously kept watch. After indictment, Gementera entered a plea agreement pursuant to which he pled guilty to mail theft, see 18 U.S.C. § 1708 , and the government dismissed a second count of receiving a stolen U.S. Treasury check. See 18 U.S.C. § 641 .

The offense was not Gementera’s first encounter with the law. Though only twenty-four years old at the time, Gement-era’s criminal history was lengthy for a man of his relative youth, and it was growing steadily more serious. At age nineteen, he was convicted of misdemeanor criminal mischief. He was twice convicted at age twenty of driving with a suspended license. At age twenty-two, a domestic dispute led to convictions for…

dissenting:

Conditions of supervised release must be reasonably related to- and “involve no greater deprivation of liberty than is reasonably necessary” to deter criminal conduct, protect the public, and rehabilitate the offender. See 18 U.S.C. §§ 3553 (a)(1)-(2); 3583(d)(2); United States v. Williams, 356 F.3d 1045, 1056 (9th Cir.2004). Clearly, the shaming punishment 1 at issue in this case was intended to humiliate Ge-mentera. And that is all it will do. Any attempt to classify the goal of the punishment as anything other than humiliation would be disingenuous. 2 Because humiliation is not one of the three proper goals under the Sentencing Reform Act, 3 I *611 would hold that the district court abused its discretion in imposing the condition.

There is precious little federal authority-on sentences that include shaming components, perhaps indicative of a recognition that whatever legal justification may be marshaled in support of sentences involving public humiliation, they simply have no place in the majesty of an Article III courtroom. Some state courts have reviewed such sentences and the results have been mixed.

People v. Hackler, 13 Cal.App.4th 1049 , 16 Cal.Rptr.2d 681,…