IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 STATE OF WASHINGTON,
                                                          No. 79943-6-I
                        Respondent,
                                                          DIVISION ONE
               v.
                                                          UNPUBLISHED OPINION
 ALEXIS OLGUIN HERNANDEZ,

                        Appellant.


       HAZELRIGG, J. — Alexis O. Hernandez appeals a condition of sentence after

his conviction for unlawful possession of a firearm in the second degree. At

sentencing, the court required him to register as a felony firearm offender pursuant

to RCW 9.41.330(1), which gives a court discretion to impose the registration

requirement based on an offender’s criminal history. Hernandez claims the statute

is void for vagueness because it lacks ascertainable standards for determining

what criminal history justifies imposition of the requirement. Because the statute

does not define criminal conduct or fix a sentence, it is not subject to a vagueness

challenge. Accordingly, we affirm.

                                           FACTS

       Alexis Hernandez entered a guilty plea to unlawful possession of a firearm

in the second degree for an offense that occurred on April 3, 2018. Hernandez

had five prior felony convictions, including a 2017 conviction for unlawful

possession of a firearm in the second degree and a 2015 conviction for attempting


         Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79943-6-I/2


to elude a police officer. At sentencing, the State recommended the court order

Hernandez to register as a felony firearm offender under RCW 9.41.330(1).

Hernandez opposed the request. The court ordered Hernandez to comply with the

registration requirement based on his criminal history, noting that this was his

second conviction for unlawful possession of a firearm.          Hernandez timely

appealed.

                                   DISCUSSION

       Hernandez claims that RCW 9.41.330, which gives courts discretion to

require a person convicted of a felony firearm offense to comply with registration

requirements, is unconstitutionally vague because it lacks sufficient standards to

guide the court’s discretion to impose it based on criminal history. The State

contends that because the statute is a sentencing guideline, it is not subject to a

vagueness challenge.

       A vagueness analysis encompasses two due process concerns: (1) a

criminal statute must be specific enough to give citizens fair notice of what conduct

is proscribed, and (2) laws must provide ascertainable standards of guilt to protect

against arbitrary arrest and prosecution. State v. Baldwin, 150 Wn.2d 448, 458,

78 P.3d 1005 (2003). Both prongs of the analysis focus on laws that prohibit or

require conduct. Id. In Baldwin, the court held that sentencing guideline statutes

that give courts discretion to impose an exceptional sentence were not subject to

a vagueness challenge, concluding that the due process concerns underlying such

a challenge “have no application in the context of sentencing guidelines.” Baldwin,

150 Wn.2d at 459. The court recognized that “[f]undamental to both statutes being


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challenged is the notion that a court is free to exercise discretion in fashioning a

sentence,” and “[t]he guidelines are intended only to structure discretionary

decisions affecting sentences; they do not specify that a particular sentence must

be imposed.” Baldwin, 150 Wn.2d at 460-61. Thus, the court concluded: “[s]ince

nothing in these guideline statutes requires a certain outcome, the statutes create

no constitutionally protectable liberty interest.” Id. at 461.

       RCW 9.41.330 permits a trial court to order persons convicted of a felony

firearm offense to comply with the registration requirements in RCW 9.41.333. The

statute requires that a person subject to the registration requirement must provide

certain basic information for their identification and location, as well as information

about the registerable offense, to the local sheriff’s office in the county where they

reside. RCW 9.41.333. The statute further allows the sheriff to seek additional

documentation and photograph or fingerprint the registrant, imposes time limits on

registration upon release from custody or sentencing, establishes annual renewal

of registration up to a maximum of four years, and sets out procedures for change

of residence during the period of registration. Id. RCW 9.41.330 provides in

relevant part:

       (1) On or after June 9, 2016, except as provided in subsection (3) of
           this section, whenever a defendant in this state is convicted of a
           felony firearm offense or found not guilty by reason of insanity of
           any felony firearm offense, the court must consider whether to
           impose a requirement that the person comply with the registration
           requirements of RCW 9.41.333 and may, in its discretion, impose
           such a requirement.
       (2) In determining whether to require the person to register, the court
           shall consider all relevant factors including, but not limited to:
           (a) The person's criminal history;



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          (b) Whether the person has previously been found not guilty by
              reason of insanity of any offense in this state or elsewhere;
              and
          (c) Evidence of the person's propensity for violence that would
              likely endanger persons.

       Hernandez contends that the statute provides no standards to guide its

discretion to impose the requirement based on criminal history. He argues that

“[a] trial court may decide a particular criminal history may warrant registration or

the trial court may not, all within its own arbitrary whims.” Hernandez points out

that the trial court here relied on the fact that he had a prior conviction for felony

possession of a firearm in the second degree even though nothing in his criminal

history suggested a propensity for violence.

       We agree with the State that RCW 9.41.330 is a sentencing guideline and

is not subject to a vagueness challenge. The statute does not specify that a

particular sentence must be imposed or require a certain outcome. Rather, it

provides a sentencing court discretion to impose the registration requirement when

one is convicted of a felony firearm offense: it directs the court to consider whether

to impose the registration requirement “whenever a defendant in this state is

convicted of a felony firearm offense,” and provides that the court “may, in its

discretion, impose such a requirement.” RCW 9.41.330 (1). Thus, under Baldwin,

it is not subject to a vagueness challenge. 150 Wn.2d at 461.

       We similarly rejected a vagueness challenge to RCW 9.41.330 in an

unpublished decision in State v. Miller, noted at 195 Wn. App. 1026, 2016 WL

4087307 (August 1, 2016), and concluded:

       As with the sentencing guideline statutes at issue in Baldwin, the
       statute herein grants a court discretion in determining whether to


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        impose the registration requirement on felony firearm offenders. See
        RCW 9.41.330. Our Supreme Court has never indicated a need to
        revisit its holding in Baldwin. The Baldwin decision controls our
        analysis. The sentencing statute at issue is not subject to a facial
        void for vagueness challenge.

We adopt and apply that reasoning here.1 See also State v. Brush, 5 Wn. App. 2d

40, 63, 425 P.3d 545 (2018) (holding that “Baldwin remains good law,” and

rejecting vagueness challenge to statutory aggravating factors).

        Nonetheless Hernandez contends that Baldwin conflicts with United States

Supreme Court precedent, citing Johnson v. United States, where the Court held

that the vagueness doctrine applies “not only to statutes defining elements of

crimes, but also to statutes fixing sentences.” __U.S.__, 135 S. Ct. 2551, 2556-

57, 192 L. Ed. 2d 569 (2015). In Johnson, the Court considered a vagueness

challenge to a provision of the Armed Career Criminal Act (ACCA) that imposes

an increased prison term when a defendant has three prior convictions for a

“violent felony,” a term defined by the statute’s residual clause to include any felony

that “involves conduct that presents a serious potential risk of physical injury to

another.” 135 S. Ct. at 2555-56. The district court concluded that a conviction for

unlawful possession of short-barreled shotgun qualified as a violent felony. The

Court reversed, concluding:

        We are convinced that the indeterminacy of the wide-ranging inquiry
        required by the residual clause both denies fair notice to defendants
        and invites arbitrary enforcement by judges. Increasing a defendant's
        sentence under the clause denies due process of law.

135 S. Ct. at 2557.


        1 Miller addressed the former version of RCW 9.41.330, which did not include the
mandatory provision in sections (3) and (4) of the current statute. Hernandez’s challenge is to RCW
9.41.330(1) and (2), which is virtually identical to the former version of the statute.


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       But in a later case, Beckles v. United States, __ U.S. __,137 S. Ct. 886, 197

L. Ed. 2d 145 (2017), the Court rejected a vagueness challenge to a United States

Sentencing Guideline containing a residual clause identical to the ACCA’s residual

clause at issue in Johnson. The Court reiterated that two kinds of laws are subject

to vagueness challenges: ones that define criminal offenses and ones that fix the

permissible sentences for criminal offenses. 137 S. Ct. at 892. The Court then

distinguished the ACCA, which required sentencing courts to increase the term

beyond the statutory maximum, from the Sentencing Guidelines, which “merely

guide the exercise of a court’s discretion in choosing an appropriate sentence

within the statutory range.” Id. As the Court pointed out, “no party to this case

suggests that a system of purely discretionary sentencing could be subject to a

vagueness challenge,” and “if a system of unfettered discretion is not

unconstitutionally vague, then it is difficult to see how the present system of guided

discretion could be.” 137 S. Ct. at 893-94. Thus, the Court concluded, “[b]ecause

they merely guide the district courts’ discretion, the Guidelines are not amenable

to a vagueness challenge.” Id.

       Likewise here, RCW 9.41.330 does not fix the permissible sentences for

felony firearm offenses. Rather, it merely guides a sentencing court in exercising

its discretion to impose the registration requirement upon conviction of a felony

firearm offense. Accordingly, it is not subject to a vagueness challenge. See also

State v. DeVore, 2 Wn. App. 2d 651, 664-65, 413 P.3d 58 (2018) (rejecting

vagueness challenge to statutory aggravating factor, citing Beckles and

distinguishing Johnson).




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       Citing Baldwin, Hernandez further contends that RCW 9.41.330(3) is

subject to a vagueness challenge because it “proscribe[s] or prescribe[s] conduct”

by requiring one to register and maintain registration for a four year period. See

Baldwin, 150 Wn.2d at 458. Thus, he contends the statute is more like other

sentencing conditions that are subject to vagueness challenges.           But unlike

vagueness challenges to sentencing conditions, Hernandez’s attack is not focused

on the registration requirement itself. Instead, he challenges the statute that gives

the sentencing court discretion to impose this requirement. As discussed above,

because this statute simply guides a sentencing court in deciding whether to

impose this requirement, it is not subject to a vagueness challenge. We affirm.




WE CONCUR:




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