NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 22 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10207

Plaintiff-Appellee, D.C. No. 1:17-cr-00040-DAD-BAM-2 v.

LESLIE HOOD, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted January 8, 2024** San Francisco, California

Before: SILER,*** TASHIMA, and BRESS, Circuit Judges.

Shortly before beginning voir dire in his criminal trial for possession with

intent to distribute methamphetamine, Defendant Leslie Hood, proceeding pro se,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. reached an oral plea agreement with the government. As part of that agreement, he

agreed to “waiv[e] all appellate and collateral attack rights.” The court sentenced

him to 147 months of imprisonment and a five-year period of supervised release,

with the supervised release conditions that he be gainfully employed and engage in

community service or employment at least thirty hours per week. He now challenges

the work-related conditions of his supervised release, arguing that his appellate

waiver did not foreclose a challenge to those conditions, and that they violate the

Eighth Amendment. Finding no constitutional violation, we affirm his sentence.

The question whether Hood has waived his appellate rights is reviewed de

novo. United States v. Dailey, 941 F.3d 1183, 1188 (9th Cir. 2019). Ordinarily,

allegations that a supervised release condition violates the Constitution are reviewed

de novo, but when the issue is not raised before the trial court, as is the case here,

review is merely for plain error. See United States v. Nishida, 53 F.4th 1144, 1150

(9th Cir. 2022). Although Hood appears to have validly waived his appellate rights

in his plea agreement, we need not reach that issue because an appellate waiver is

inapplicable if a sentence is illegal, as Hood is alleging here. See, e.g., United States

v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007), as amended; see also Nishida, 53 F.4th

at 1149 (“When a defendant with an otherwise valid appeal waiver challenges the

legality of [his] sentence, the claim as to waiver rises and falls with the claim on the

merits.” (quoting United States v. Dailey, 941 F.3d 1183, 1188 (9th Cir. 2019))). The

2 22-10207 parties also appear to agree that Hood’s waiver, even if valid, would not cover the

merits of this appeal.

The Eighth Amendment prohibits the imposition of “cruel and unusual

punishments.” U.S. Const. amend VIII. Two categories of punishments fall within

the Amendment’s ambit: (1) those “considered cruel and unusual at the time that the

Bill of Rights was adopted,” and (2) those that offend our “evolving standards of

decency.” United States v. Gementera, 379 F.3d 596, 608 (9th Cir. 2004) (citations

omitted). Analysis of whether a punishment offends modern decency standards

looks broadly at “American society as a whole” and whether such punishments are

unusual generally and in the context of “the reality of the modern prison.” Id. at

608–10. The Amendment’s core concern is “the dignity of man.” Id. at 608

(quotations omitted).

As part of his sentence, the district court ordered Hood to comply with the

standard conditions of supervision and special conditions recommended by the

Probation Office. Two of those conditions impose a work or community-service

requirement. The first states that “[y]ou must work full time (at least 30 hours per

week) at a lawful type of employment, unless the probation officer excuses you from

doing so.” The second requires that Hood “be employed and/or complete

community service for a combination of 30 hours per week or participate in a

previously approved educational or vocational program by the probation officer.”

3 22-10207 Hood argues that “[r]equiring a 64 year-old man in ill health to work full time despite

the pain and pronounced physical discomfort it will cause him is an unnecessary and

wanton infliction of pain and it is an uncivilized blow to Mr. Hood’s dignity.” His

health issues include “gastroesophageal reflux disease, ulcerative colitis and

inflammatory bowel disease.” He was hospitalized once during the four years his

case was pending before the district court and caught COVID-19 five different times.

He still suffers fatigue, headaches, and bone aches, apparently as a “lingering

effect[]” of COVID-19. He argues that he “simply does not have the physical ability

to work.”

As the United States points out, the work condition is not unconstitutional

because it is commonly imposed, serves a legitimate penological purpose, and does

not violate basic standards of decency. The work requirements are specifically

authorized by statute and their imposition is left to the discretion of the district court.

See 18 U.S.C. § 3563(b); United States v. Bahe, 201 F.3d 1124, 1135 (9th Cir. 2000).

And further, the Sentencing Guidelines explicitly recommend that district judges

impose the standard conditions of supervision, including the employment condition

at issue here, in every case. See U.S.S.G. § 5D1.3(c)(7). We do not consider

conditions authorized by the people’s representatives in Congress and made a

standard part of nearly every criminal judgment to be so “unusual” as to violate the

Eighth Amendment. See Gementera, 379 F.3d at 608–10.

4 22-10207 Any argument that the work requirement could be “cruel” in Hood’s case is

foreclosed by the safety valve in each condition. The work requirement explicitly

states that Hood must be gainfully employed “unless the probation officer excuses

[him] from doing so.” And the community service requirement also allows the

completion of “educational or vocational program[s]” in lieu of employment or

community service. While Hood’s current health issues are real—though how much

they keep him from working has not been independently evaluated—their effect on

his future capacity to work is largely speculative. This speculation combined with

the probation officer’s power to tailor the requirements to fit Hood’s physical

capabilities undercuts his argument that the conditions of supervised release are

unconstitutional as applied to him.

Plain error review allows the court to address an error raised for the first time

on appeal if it finds that there was (1) an error, (2) that was plain, (3) that affected

substantial rights, and (4) seriously affected the “fairness, integrity, or public

reputation of judicial proceedings.” United States v. Yijun Zhou, 838 F.3d 1007, 1012

(9th Cir. 2016) (quoting United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015)).

Because the conditions imposed are constitutional, there was no error, and the plain

error analysis stops at its first step.

The sentence is AFFIRMED.

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