                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             AUG 22 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 16-30165

              Plaintiff-Appellee,                D.C. No. 4:15-cr-00028-RRB

 v.
                                                 MEMORANDUM*
DANIEL OREN MORGAN,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Alaska
                    Ralph R. Beistline, District Judge, Presiding

                            Submitted August 15, 2017**
                                Anchorage, Alaska

Before: GRABER, CLIFTON, and M. SMITH, Circuit Judges.

      Jason Morgan challenges the substantive reasonableness of the sentence

imposed following entry of his guilty plea. The district court provided adequate

reasons to support its conclusion that the sentence was “sufficient, but not greater


      *
             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).
than necessary,” to protect the public and promote respect for the law. 18 U.S.C.

§ 3553(a). Giving “due deference to the district court’s decision that the § 3553(a)

factors, on a whole, justify the extent of the variance,” Gall v. United States, 552

U.S. 38, 51 (2007), Morgan’s sentence was not substantively unreasonable. “The

fact that [we] might reasonably have concluded that a different sentence was

appropriate is insufficient to justify reversal of the district court.” Id.

       Morgan also challenges Supervised Release Special Condition No. 7. After

the imposition of Morgan’s sentence, the Supreme Court issued its opinion in

Packingham v. North Carolina, 137 S. Ct. 1730 (2017). As agreed by the parties,

we vacate that special condition of supervised release and remand to the district

court for further consideration in light of Packingham.

       AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




                                             2
United States v. Morgan, No. 16-30165                                       FILED
M. SMITH, Circuit Judge, concurring in part and dissenting in part:          AUG 22 2017
                                                                         MOLLY C. DWYER, CLERK
      I concur in the decision to vacate special condition of supervisedU.S.release
                                                                              COURT OF APPEALS



number 7 and remand to the district court for further consideration in light of

Packingham v. North Carolina, 137 S. Ct. 1730 (2017). I dissent in part, however,

because I am concerned that the district court may have based Morgan’s sentence

on hearsay that lacked the requisite “minimal indicia of reliability.” United States

v. Pimentel-Lopez, 859 F.3d 1134, 1144 (9th Cir. 2016) (quoting United States v.

Huckins, 53 F.3d 276, 279 (9th Cir. 1995)). I would therefore vacate Morgan’s

sentence and remand to the district court for resentencing.

      1. Defendant Daniel Morgan pleaded guilty without a plea agreement to the

charge of failing to register as a sex offender. The guidelines range was 18-24

months. The district court sentenced him to 48 months imprisonment and a

lifetime term of supervised release.

      “A substantively reasonable sentence is one that is sufficient, but not greater

than necessary[,] to accomplish § 3553(a)(2)’s sentencing goals.” United States v.

Hernandez, 795 F.3d 1159, 1168 (9th Cir. 2015) (internal quotation marks

omitted). After considering those goals, if a judge “decides that an outside-

Guidelines sentence is warranted, he must consider the extent of the deviation and

ensure that the justification is sufficiently compelling to support the degree of the

                                           1
variance.” Gall v. United States, 552 U.S. 38, 50 (2007). “[A] major departure

should be supported by a more significant justification than a minor one.” Id.

Additionally, “[a]fter settling on the appropriate sentence, [the judge] must

adequately explain the chosen sentence to allow for meaningful appellate review

and to promote the perception of fair sentencing.” Id.

      “We review the substantive reasonableness of a sentence for abuse of

discretion based on the totality of the circumstances.” United States v. Vasquez-

Perez, 742 F.3d 896, 901 (9th Cir. 2014). It is an abuse of discretion to base a

sentence on hearsay that lacks “some minimal indicia of reliability.” Pimentel-

Lopez, 859 F.3d at 1144 (internal quotation mark omitted).

      2. The Presentence Report (PSR) contained allegations leveled by Morgan’s

estranged ex-wife stating that Morgan engaged in three discrete acts of deviant

sexual behavior involving young children in the 1980s. These alleged acts were

never reported to the police and did not result in any arrests, much less any

convictions. Morgan’s estranged daughter echoed only one of the allegations in

her interview with the probation officer.

      While the district court invoked deterrence, protection of the public, and

promoting respect for the rule of law as bases for doubling the high-end of the

guidelines range, there is also compelling evidence that the district court relied on

the ex-wife’s allegations in determining Morgan’s sentence. The court stated that

                                            2
Morgan had a “history of sexual assaults,” even though Morgan had only one

conviction for a sex offense involving a four-year-old boy. The court also said that

it would maintain the supervised release conditions “given [Morgan’s] history.

And it’s a history that’s not clear, because some of the victims are boys, some are

girls.” (emphasis added). The court asked Morgan, “why shouldn’t I think you’re

a danger to the community, in terms of these allegations? You get to know

someone, you get the trust of someone. The next thing you know, the children are

jeopardized.” It concluded by stating: “based on your history, and that’s what

we’re talking about, it suggests the community is in danger until you address your

demons, and so I’m going to vary upward.” (emphasis added).

      3. As it appears that the district court relied on the estranged ex-wife’s

hearsay allegations in determining Morgan’s sentence, we must assess whether that

hearsay was accompanied by “some minimal indicia of reliability.” This is an

admittedly low bar, but I am not convinced that the ex-wife’s hearsay meets the

requisite standard.

      On the one hand, the only indicia of reliability the government invokes is a

supplemental report prepared by the probation officer, who was responding to

Morgan’s objection to including these allegations in the PSR. The probation

officer explained that she interviewed Morgan’s daughter and ex-wife separately,

and found them both to be “extremely candid.” In her opinion, “[n]either family

                                          3
member appeared at all vindictive toward Morgan, but rather reflective on their

joint history.” In short, the probation officer’s credibility determination is the only

indicia of reliability offered to support the hearsay.1

      On the other hand, none of the statements made by the probation officer, the

ex-wife, or the daughter were delivered under oath, or at an evidentiary hearing

where they could be subjected to cross-examination. The government also

presented no other extrinsic evidence to corroborate the allegations. Adding to

this, the district court did not itself make the crucial credibility determination.

Moreover, the alleged events occurred some thirty years in the past, and thus

arguably had little probative value in any event. In similar circumstances, we have

held that hearsay lacked the requisite minimal indicia of reliability. See Huckins,

53 F.3d at 279‒80 (hearsay statements suggesting that defendant was armed lacked

minimal indicia of reliability where the government presented no extrinsic

evidence to corroborate the statements, and the statements were not made under

oath or in a circumstance where they were subject to cross-examination). I am not

fully convinced that the same conclusion should not be reached here.


      1
        I note that Morgan’s estranged daughter partly corroborated the estranged
ex-wife’s version of one of the three alleged events. We have held that “[o]ne factor
evidencing the reliability of hearsay statements . . . is external consistency.” United
States v. Berry, 258 F.3d 971, 976 (9th Cir. 2001). But again, the reliability of the
daughter’s statement depends principally on the probation officer’s credibility
assessment.

                                            4
      In sum, the district court appears to have issued a sentence that doubled the

high-end of Morgan’s guidelines range based on hearsay supported only by a

credibility determination made by a probation officer who had interviewed the

defendant’s estranged ex-wife about unreported but alleged acts of sexual

deviance committed some thirty years in the past. Because it is an abuse of

discretion to base a sentence on hearsay that lacks “some minimal indicia of

reliability,” I would vacate Morgan’s sentence and remand for resentencing.




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