Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding D.C. No. 2:08-cr-01321-R-1
The opinion of the court was delivered by: Thomas, Circuit Judge:
Argued and Submitted September 10, 2012-San Francisco, California
Before: Arthur L. Alarcon, Sidney R. Thomas, and Marsha S. Berzon, Circuit Judges.
In this appeal from the district court's revocation of supervised release, we consider whether the district court erred in treating a state criminal conviction as a felony rather than a misdemeanor, when the sole categorical difference was a recidivist history. We conclude that the district court properly considered the conviction as a felony. However, because the district court included a written special condition of supervised release that the court did not include in its oral pronouncement of sentence, we must vacate the judgment and remand for further proceedings.
In 2006, Duane Jones pleaded guilty to possessing counterfeit obligations with intent to defraud, in violation of 18 U.S.C. § 472. He was sentenced to 24 months in custody followed by 36 months of supervised release. Jones was subject to standard supervision conditions, including that he not commit any federal or state crimes. Prior to his federal conviction, Jones was convicted in California state court of indecent exposure.
In 2010, while on supervised release, Jones was again convicted in California state court of indecent exposure. California law specifies that an initial conviction of indecent exposure is punishable by a jail or prison term "not exceeding one year." Cal. Penal Code § 314. But "[u]pon the second and each subsequent conviction of" indecent exposure, "every person so convicted is guilty of a felony." Id. Consequently, when Jones was convicted in 2010, he was found guilty of a felony and sentenced to three years in state prison. See Cal. Penal Code § 18 (felony punishable by up to three years in prison).
After Jones's latest exposure to the criminal justice system, the United States Probation Office filed a petition alleging Jones had violated the terms of his supervised release. The probation office calculated Jones's violation as a Grade B violation, concluding that his latest foray should be counted as a felony. Because of the violation grade and Jones's criminal history category (IV), the recommended Guidelines range was 12 to 18 months. See U.S.S.G. § 7B1.4. The probation office recommended a sentence of 14 months in custody, followed by 22 months of supervised release, as well as ten special conditions of supervision.
At Jones's sentencing hearing, defense and government counsel explained that they agreed on a custodial sentence of 14 months, followed by 22 months of supervised release. They also agreed two special conditions should be omitted: one that prohibited Jones from possessing obscene materials and another that prohibited him from living within 2000 feet of schools and other facilities used by children. Jones did not challenge the probation report's finding that his offense constituted a Grade B violation.
The court sentenced defendant to 14 months in custody and 22 months of supervised release. The court did not specify the violation grade or the applicable Guidelines range. The court read aloud the special conditions and did not include the two conditions the parties had agreed to omit. However, the next day, the district court issued its ...