                                                                            FILED
                           NOT FOR PUBLICATION                               JUL 5 2017

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 16-10359

              Plaintiff-Appellee,                D.C. No. 1:10-cr-00232-HG

 v.
                                                 MEMORANDUM*
CHARLES M.F. KAHALEHOE,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Hawaii
                     Helen Gillmor, District Judge, Presiding
                      Alan C. Kay, District Judge, Presiding

                             Submitted June 26, 2017**

Before:      PAEZ, BEA, and MURGUIA, Circuit Judges.

      Charles M.F. Kahalehoe appeals special condition of supervised release

number seven, which was imposed following revocation of his supervised release

and which states: “If the defendant is able to be compliant with the conditions of

      *
             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).
supervised release, the Court would have no objection to the defendant resuming

school in the fall of 2017.” We have jurisdiction under 28 U.S.C. § 1291, and we

remand for further proceedings.

      As an initial matter, we note that Kahalehoe’s supervised release was

revoked again while this appeal was pending. He was sentenced to a custodial

term of six months, to be followed by a supervised release term of 50 months, and

the challenged condition was reimposed, this time as special condition number

eight. In light of these circumstances, we agree with Kahalehoe that his appeal is

not moot. See Foster v. Carson, 347 F.3d 742, 746 (9th Cir. 2003) (explaining

“capable of repetition, yet evading review” exception to mootness).

      We also agree that the challenged condition as written is vague as to the

meaning of “school” and as to what constitutes compliance sufficient to permit

Kahalehoe’s return to school. See United States v. Sales, 476 F.3d 732, 737 (9th

Cir. 2007) (this court must review the language of the condition as written and

defendant “cannot be left to guess” about the intended meaning of that language).

Therefore, we remand to the district court to vacate special condition eight in the

February 22, 2017, judgment. On remand, the court must explain how any

educational restriction is reasonably related to deterrence, protection of the public,




                                           2                                    16-10359
and Kahalehoe’s rehabilitation, and involves no greater deprivation of liberty than

is reasonably necessary to achieve those goals. See 18 U.S.C. § 3583(d).

      REMANDED with instructions.




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