NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 30 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10170

Plaintiff-Appellee, D.C. No. 3:18-cr-08252-SPL-1 v.

NATHAN BROOKS MANUELITO, MEMORANDUM*

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 22-10171

Plaintiff-Appellee, D.C. No. 3:09-cr-08073-SPL-1 v.

NATHAN BROOKS MANUELITO,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Argued and Submitted May 15, 2024 Phoenix, Arizona

Before: GRABER, DESAI, and DE ALBA, Circuit Judges. Partial dissent by Judge GRABER.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Nathan Manuelito appeals his convictions. He also challenges two aspects of

his sentence: the special condition of supervised release prohibiting any contact with

his daughter and the 24-month sentence for revocation of supervised release.

Manuelito was indicted on three counts of assault, one count of burglary, and

one count of kidnapping after two domestic violence incidents involving his

girlfriend at the time, S.A., in 2018. During the first incident, he beat, choked, and

dragged S.A. around the house by her hair. Two days later, he kicked in S.A.’s door

while she attempted to prevent him from entering her home and, upon entering,

shoved S.A. into a wall. S.A. did not seek medical treatment immediately after the

incidents. She visited the emergency room two days after the second incident and

told hospital staff, among other things, that she was “requested by [the] FBI to come

into [the] ER for documentation.” The doctor and nurse who treated S.A. at the

emergency room testified to S.A.’s statements in the medical records recounting the

assaults, and the district court admitted the testimony and exhibits over Manuelito’s

objection.

The jury convicted Manuelito on three counts of assault and acquitted him on

the burglary and kidnapping charges. The district court sentenced Manuelito to

consecutive sentences of 96 months for the assault case and 24 months for violation

of supervised release in a prior case. The district court also imposed a special “no-

contact” condition prohibiting Manuelito from having contact with S.A. and her

2 children, including Manuelito’s biological daughter, A.A.

We have jurisdiction under 28 U.S.C. § 1291. We review a district court’s

evidentiary rulings for an abuse of discretion. United States v. Latu, 46 F.4th 1175,

1179 (9th Cir. 2022). When a defendant fails to object at sentencing, the court

reviews a challenge to the sentence for plain error. United States v. Johnson, 626

F.3d 1085, 1088–89 (9th Cir. 2010). We affirm in part, and vacate and remand in

part.

1. Manuelito argues that the district court abused its discretion by

admitting S.A.’s statements in her emergency room records under the medical

statements hearsay exception. Fed. R. Evid. 803(4). If the court concludes a district

court wrongly admitted hearsay evidence, it reviews for harmless error. United

States v. Olano, 62 F.3d 1180, 1189 (9th Cir. 1995). We affirm the conviction

because, even assuming the district court abused its discretion by admitting S.A.’s

medical record statements, any error was harmless.

The government has the burden to show an error was harmless by a

preponderance of the evidence. United States v. Gonzalez-Flores, 418 F.3d 1093,

1099 & n.3 (9th Cir. 2005). It has met its burden for several reasons. First, S.A.

testified to—and was cross-examined on—the same version of events included in

the medical record statements. See United States v. Payne, 944 F.2d 1458, 1473 (9th

Cir. 1991) (holding that erroneously admitted hearsay was harmless because the

3 content of the statements was “brought out in a number of other ways,” including

the declarant’s testimony). Second, the government introduced other evidence

produced at the time of the incidents to help corroborate S.A.’s testimony, such as a

bodycam video from shortly after the second incident and photos of S.A.’s injuries

consistent with her testimony. And third, the government did not rely on S.A.’s

statements in the medical records to argue that she was more credible. It is thus more

likely than not that the statements did not have a “substantial and injurious effect or

influence in determining the jury’s verdict.” United States v. Bruce, 394 F.3d 1215,

1229 (9th Cir. 2005) (emphasis omitted) (quoting Kotteakos v. United States, 328

U.S. 750, 776 (1946)).

2. Manuelito argues that the district court plainly erred by entering a no-

contact condition relating to his daughter, A.A. To prevail on plain error review,

Manuelito must show (1) error, (2) that was plain, (3) that affected his substantial

rights, and (4) seriously affected the “fairness, integrity[,] or public reputation of

judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993) (quoting

United States v. Young, 470 U.S. 1, 15 (1985)). Manuelito satisfies all prongs of

plain error review on this claim.

The district court erred by failing to place specific findings on the record to

justify the no-contact condition. When, as here, a supervised release condition

implicates a “particularly significant liberty interest,” United States v. Wolf Child

4 requires the district court to “‘undertake an individualized review’ on the record of

the relationship between the defendant and the family member at issue,” and explain

(1) why the condition provision is necessary to accomplish one or more of the

supervised release goals, and (2) why the condition is no more restrictive than

reasonably necessary to accomplish those goals.1 699 F.3d 1082, 1090 (9th Cir.

2012). Wolf Child is clear that the district court cannot “rely on broad generalities,”

and must analyze the relationship, the supervised release condition, and its necessity

for accomplishing specific sentencing goals. Id. at 1094.

The district court failed to make the necessary findings. It read a letter from

A.A. at the sentencing hearing and referenced an alleged restraining order from the

tribal court. But the district court did not analyze the relationship between Manuelito

and A.A., it did not make clear whether or how the no-contact condition is necessary

to accomplish the supervised release goals, and it did not consider whether the

condition is no more restrictive than reasonably necessary to accomplish those goals.

In fact, the district court did not summarize statements from earlier at the hearing or

1 We decline to interpret Manuelito’s statement at sentencing, “I relinquish my parental rights,” as a waiver of the right Wolf Child protects. In context, the statement appears to have been made erroneously, and it contradicts Manuelito’s other statements that he hopes to take care of his domestic matters in the tribal courts and hopes his daughter will “come around.” In any event, the government waived any waiver by failing to raise the issue and by arguing that Manuelito’s claim should fail under plain error review. See Norwood v. Vance, 591 F.3d 1062, 1068 (9th Cir. 2010).

5 reference any particular analysis before summarily imposing its no-contact condition

at the conclusion of the hearing.2 Because Wolf Child’s procedural requirements are

not subject to reasonable dispute—indeed, the government alerted the court to the

Wolf Child standard at sentencing—the district court’s error was plain. Puckett v.

United States, 556 U.S. 129, 135 (2009) (holding an error is plain when it is “clear

or obvious, rather than subject to reasonable dispute”).

The error affected Manuelito’s substantial rights and the fairness of the

proceedings. If the district court had reviewed the alleged restraining order, analyzed

the sentencing goals, and assessed whether a narrower condition could achieve those

goals, it might have, at the very least, imposed a less restrictive condition. See United

States v. Bautista, 989 F.3d 698, 702 (9th Cir. 2021) (explaining that an error affects

substantial rights when there is “a reasonable probability that [the defendant] would

have received a different sentence if the district court had not erred”); see United

States v. Perazza-Mercado, 553 F.3d 65, 78 (1st Cir. 2009) (“[T]here is a reasonable

2 Contrary to the dissent’s assertion, our holding neither elevates form over substance, nor does it require the district court to use “magic words” when imposing a non-standard condition that restricts a significant liberty interest. The record is void of any indication that the district court assessed the necessity and restrictiveness of the condition. And the dissent’s efforts to cobble together a justification for the condition is no substitute for Wolf Child’s requirement that the district court conduct the necessary inquiry to ensure a reasoned decision. See 699 F.3d at 1090 (contrasting conditions subject to the heightened procedural requirements with typical conditions, in which “the district court need not state . . . the reasons for imposing each condition . . . if the reasoning is apparent from the record” (emphasis omitted)).

6 probability that the court might not have imposed the prohibition if it had fulfilled

its obligation to explain the basis for the condition or at least made sure that the

record illuminated the basis for the condition.”). For the same reasons, the court’s

summary imposition of the condition affected the fairness of the proceeding. See

United States v. Castillo-Casiano, 198 F.3d 787, 792 (9th Cir. 1999) (noting that “it

is easy to see why prejudicial sentencing errors undermine the ‘fairness, integrity,

and public reputation of judicial proceedings’” because such errors impose a harsher

sentence on the defendant than might have been imposed absent the error).

Because the district court plainly erred by failing to comply with Wolf Child,

we vacate Special Condition 7 insofar as it relates to A.A. and remand for further

proceedings. On remand, the district court must explain its reasons for imposing this

condition in light of Wolf Child and if it cannot, it must narrow the condition

appropriately. Wolf Child, 699 F.3d at 1103.

3. Lastly, Manuelito contends that the district court plainly erred by using

the criminal history calculation from his 2010 Presentence Investigation Report

when sentencing him in his supervised release case. Manuelito does not satisfy even

the error prong of plain error review. Manuelito argues that the 2010 criminal history

calculation was incorrect because later case law has clarified the underlying crimes

do not constitute crimes of violence. But the sentencing guidelines state that the

district court must use the initial criminal history calculation at a revocation

7 proceeding. U.S. Sent’g Guidelines Manual § 7B1.4 cmt. n.1 (“The criminal history

category to be used in determining the applicable range of imprisonment in the

Revocation Table is the category determined at the time the defendant originally was

sentenced.”). Defendants thus cannot use a revocation proceeding to challenge the

initial career offender designation. See United States v. Castro-Verdugo, 750 F.3d

1065, 1068 (9th Cir. 2014) (“An appeal challenging a probation revocation

proceeding is not the proper avenue through which to attack the validity of the

original sentence.” (quoting United States v. Gerace, 997 F.2d 1293, 1295 (9th Cir.

1993)).

AFFIRMED in part, VACATED in part, and REMANDED.

8

FILED

United States v. Manuelito, Nos. 22-10170, 22-10171 MAY 30 2024

MOLLY C. DWYER, CLERK

GRABER, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS

I concur in the disposition with respect to the rulings on hearsay and the

calculation of criminal history. But I respectfully dissent from the holding that the

district court plainly erred by entering a no-contact condition relating to

Defendant’s daughter, A.A.

First, it is clear that the court was aware of its obligations under United

States v. Wolf Child, 699 F.3d 1082 (9th Cir. 2012), because counsel cited it and

discussed its application.

Second, the court did make specific findings on the record in support of the

no-contact condition. In the unusual circumstances of this case, the disposition

elevates form over substance by requiring a do-over. The district court relied on

three things.

(1) Defendant already was subject to “a lifetime restraining order based on

the violence that [he had] exhibited against [the] mother of [his] child.” This fact

alone supports the condition because Defendant already is legally barred from

having any contact with A.A. for the rest of his life. In other words, Defendant

cannot meet the plain-error requirement of an effect on his substantial rights. See

United States v. Olano, 507 U.S. 725, 732 (1993) (stating that, to prevail on plain

error review, a defendant must show that the alleged error affected his substantial rights), superseded in part on other grounds by Fed. R. Crim. P. 24(c). Defendant

already had no right to contact A.A. because of the pre-existing court order, so a

lesser condition in this case would have been meaningless in practical terms. (2)

The court next cited “the violent nature of the instant offense.” (3) Finally, the

court relied on what the victim and A.A “articulated to the Court.” The court was

referring in part to a letter from 12-year-old A.A., which was read into the record,

in which she detailed the traumas that Defendant caused her, described suicidal

feelings, and wrote that, if Defendant got out of jail, “don’t come looking for me.”

Given those findings, even if the first finding is not dispositive, the absence of

explicit “magic words” tying these three reasons to the no-contact condition is not

plain error, because the connection is obvious.

For those reasons, I would affirm in full.

2