                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 18-1496
                                     _____________

                            UNITED STATES OF AMERICA
                                       v.

                                 SOULEMANE BARRY,
                                             Appellant
                                    _____________


                    On Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                          District Court No. 2-14-cr-00272-002
                    District Judge: The Honorable Timothy J. Savage

                   Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                 December 10, 2018

          Before: SMITH, Chief Judge, McKEE, and FISHER, Circuit Judges

                               (Filed: December 24, 2018)
                                _____________________

                                       OPINION *
                                _____________________



SMITH, Chief Judge.




*
  This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       After Soulemane Barry had his supervised release revoked, the District Court

reimposed supervised-release conditions requiring that he “not frequent places where

controlled substances are illegally sold [or] used” and not “associate” with criminals. On

appeal, Barry raises for the first time his contention that these two conditions are

unconstitutionally vague and bolsters his argument with Seventh Circuit decisions

reaching the same conclusion. But this Court has held that association supervised-release

conditions are constitutional, and the Ninth and Tenth Circuits have held that both

conditions are constitutional. Because of the circuit split, any mistake by the District

Court in imposing either condition is not plain error. We will therefore affirm. 1

                                              I.

       For about two years, Barry used fraudulent credit cards, debit cards, and gift cards

to make retail purchases. After getting caught, he pleaded guilty to using and attempting

to use “counterfeit access devices” in violation of 18 U.S.C. § 1029(a)(1), (b)(1),

possessing 15 or more counterfeit access devices in violation of 18 U.S.C. § 1029(a)(3),

and conspiring to commit access device fraud in violation of 18 U.S.C. § 371. The

District Court sentenced Barry to no prison time and five years’ supervised release.

Among the supervised-release conditions imposed, the Court required that Barry (1) “not

frequent places where controlled substances are illegally sold, used, distributed, or

administered” and (2) “not associate with any persons engaged in criminal activity” or

“with any persons convicted of a felony” without his probation officer’s permission.


1
  The District Court had jurisdiction under 18 U.S.C. § 3231, and we have jurisdiction
pursuant to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. See United States v. Loy, 237
                                             2
       Roughly two and a half years later, the District Court revoked Barry’s supervised

release. (He had stabbed two people, travelled outside of the Eastern District of

Pennsylvania without permission, used controlled substances, stopped attending a drug-

treatment program, and did not report to his probation officer as directed.) The District

Court imposed 14 months’ imprisonment, two years’ supervised release, and the “same”

conditions it had previously imposed. Barry did not challenge the controlled-substance

or association supervised-release conditions in the District Court.

                                              II.

       On appeal, Barry argues that the District Court committed plain error by imposing

the controlled-substance and association conditions because they are unconstitutionally

vague. A supervised-release condition is unconstitutionally vague “if it either forbids or

requires the doing of an act in terms so vague that men of common intelligence must

necessarily guess at its meaning and differ as to its application.” United States v.

Maloney, 513 F.3d 350, 357 (3d Cir. 2008) (internal quotation marks and citation

omitted). And under plain-error review, Barry must show that (1) an error occurred;

(2) the error is “obvious”; and (3) the error “affected the outcome of the district court

proceedings.” United States v. Olano, 507 U.S. 725, 732–34 (1993). If Barry makes

these showings, we exercise our discretion to award relief when the error “seriously

affect[s] the fairness, integrity or public reputation of judicial proceedings.” Id. at 736

(internal quotation marks and citation omitted). Because an unconstitutionally vague

condition would have affected the outcome of the District Court proceedings, the parties


F.3d 251, 255 (3d Cir. 2001).                 3
dispute only whether the controlled-substance and association conditions are void for

vagueness and whether this error is obvious.

       Barry argues that the controlled-substance condition is unconstitutionally vague

because this condition neither specifies how many trips result in “frequent[ing]” sites of

drug activity, nor does it clarify whether Barry must knowingly be in such a place to

violate it. In support Barry points to Seventh Circuit decisions holding that the

controlled-substance condition is unconstitutionally vague for the reasons he identifies.

See United States v. Kappes, 782 F.3d 828, 848–49 (7th Cir. 2015); United States v.

Thompson, 777 F.3d 368, 379 (7th Cir. 2015). Barry also emphasizes that before the

District Court revoked his supervised release in 2018, the Sentencing Commission

eliminated the controlled-substance condition from its list of standard conditions because

it concluded that the controlled-substance condition was “encompassed by” the

association condition. U.S. Sentencing Guidelines Manual app. C, amend. 803 (U.S.

Sentencing Comm’n 2016). Because the Seventh Circuit and the Sentencing

Commission have “rejected” the controlled-substance condition, Barry contends that the

District Court plainly erred by imposing it.

       Courts of appeals are split on whether the controlled-substance condition is

unconstitutionally vague. Diverging from the Seventh Circuit’s position, the Ninth and

Tenth Circuits have ruled that the controlled-substance condition is not unconstitutionally

vague, reasoning that “commonsense” dictates that this condition has a knowledge

requirement and is readily understood. United States v. Llantada, 815 F.3d 679, 684

(10th Cir. 2016); United States v. Phillips, 704 F.3d 754, 767–68 (9th Cir. 2012). The
                                              4
existence of this circuit split is evidence that reasonable minds may differ as to this

condition’s meaning and application and that this condition may be unconstitutionally

vague. But the existence of the circuit split also demonstrates that any mistake by the

District Court in imposing this condition is not plain error. When a District Court rules

on a sentencing issue in the same way as an out-of-circuit court of appeals (assuming this

Court has not ruled on the issue), any mistake by the District Court is not plain error.

See United States v. Cruz, 757 F.3d 372, 387 n.11 (3d Cir. 2014).

       Barry makes a similar argument in asserting that the association condition is also

unconstitutionally vague. He asserts that this condition impermissibly fails to clarify

whether, to violate it, a defendant must know he is associating with a felon or other

criminal; he says this condition could be reasonably interpreted as a strict-liability rule.

He adds that the term “associate” is vague because it does not put defendants on notice of

the number of meetings required to constitute a violation. He bolsters his argument by

underscoring the Seventh Circuit’s holding that the association condition is

unconstitutional for the reasons he highlights and the Sentencing Commission’s

elimination of “associate” from its proposed rewording of this condition. See Kappes,

782 F.3d at 848–49; Thompson, 777 F.3d at 377; U.S.S.G., app. C, amend. 803.

       Although this Court has not directly ruled on the constitutionality of Barry’s

association condition, we have held that “associational conditions” are not

unconstitutionally vague because “it is well established that [they] … do not extend to

casual or chance meetings.” United States v. Loy, 237 F.3d 251, 268–69 (3d Cir. 2001).

Because “chance meetings” do not violate association conditions, we have effectively
                                           5
explained that Barry’s association condition has a knowledge requirement. Moreover, in

Loy, we declared that a defendant violates an association condition by “deliberately

seek[ing]” contact with the prohibited group, id. at 269, indicating that one meeting can

be enough to violate this condition. Finally, even if we ruled that the association

condition is unconstitutionally vague, the District Court’s decision to impose it is not

plain error because several circuits have held this condition to be constitutional.

See Llantada, 815 F.3d at 684–85; United States v. King, 608 F.3d 1122, 1128–29

(9th Cir. 2010); see also Cruz, 757 F.3d at 387 n.11.

                                             III.

       Because the District Court did not commit plain error by imposing either the

controlled-substance or association conditions, we will affirm the order. We recognize,

however, given the split of authority we have discussed, that Barry’s concerns regarding

these conditions are not unwarranted. We therefore encourage the District Court to

consider exercising its authority under 18 U.S.C. § 3583(e)(2), to impose the updated

condition recommended by the Sentencing Guidelines, U.S.S.G. § 5D1.3(c)(8) (2018), in

place of the controlled-substance and association conditions.




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