                    FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                     No. 12-30353
             Plaintiff-Appellee,
                                                 D.C. No.
                   v.                         2:08-cr-06033-
                                                 WFN-1
 KENNETH MAYNARD WILLIAMS,
          Defendant-Appellant.                   OPINION


     Appeal from the United States District Court
        for the Eastern District of Washington
 Wm. Fremming Nielsen, Senior District Judge, Presiding

                  Argued and Submitted
           August 27, 2013—Seattle, Washington

                     Filed February 3, 2014

 Before: M. Margaret McKeown and Richard R. Clifton,
 Circuit Judges, and Jed S. Rakoff, Senior District Judge.*

                   Opinion by Judge Rakoff




  *
     The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
2                 UNITED STATES V. WILLIAMS

                           SUMMARY**


                           Criminal Law

    Reversing and vacating the district court’s order revoking
supervised release, and remanding for further proceedings,
the panel held that a defendant’s Alford plea to a state charge
is insufficient to prove commission of a state crime for
purposes of a federal supervised release violation when the
state itself does not treat it as sufficiently probative of the fact
that the defendant actually committed the acts constituting the
crime or crimes of conviction.


                             COUNSEL

Alison K. Guernsey (argued), Assistant Federal Defender of
Eastern Washington & Idaho, Yakima, Washington, for
Defendant-Appellant.

Alexander C. Ekstrom (argued), Assistant United States
Attorney, United States Attorneys’ Office, Eastern District of
Washington, Yakima, Washington, for Plaintiff-Appellee.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
               UNITED STATES V. WILLIAMS                    3

                         OPINION

RAKOFF, Senior District Judge:

    The narrow legal question presented by this appeal is
whether a defendant’s Alford plea to a state charge is
sufficient in itself to warrant a finding of violation of the
condition of federal supervised release prohibiting
commission of a new state crime when the state itself does
not treat the Alford plea as evidence of commission of the
crime. We hold that it is insufficient.

       FACTUAL AND PROCEDURAL HISTORY

    Defendant Kenneth Maynard Williams pleaded guilty in
2009 to the federal crime of receiving a stolen motorcycle in
violation of 18 U.S.C. § 2313 and was sentenced to fifteen
months’ imprisonment to be followed by three years’
supervised release. While on supervised release, Williams
was charged under Washington state law with second-degree
assault with a firearm and unlawful possession of a firearm.
Williams denied all the allegations, and eventually a plea
agreement was reached in which the charges were reduced to
a single charge of assault in the third degree. The new charge
was something of a legal fiction, as one of the elements of
third-degree assault in Washington is causing bodily harm,
which the alleged victims did not accuse Williams of doing.
Nevertheless, under the Washington doctrine approved in In
re Barr, 684 P.2d 712 (Wash. 1984), a defendant can plead
guilty to a factually unsupported lesser charge if a factual
basis exists to support the original charge. Id. at 715.

    Williams steadfastly maintained his factual innocence of
all charges. Yet on August 22, 2012, Williams entered a
4               UNITED STATES V. WILLIAMS

guilty plea to the single assault charge, pursuant to the
doctrine of North Carolina v. Alford, 400 U.S. 25 (1970), as
accepted by Washington, State v. Newton, 552 P.2d 682
(Wash. 1976), in which a defendant may plead guilty even
while maintaining factual innocence. As Williams wrote in
connection with his plea: “Alfred [sic] plea: I am pleading
guilty to accept the offer of the state although I did not
commit the offence. I believe I run a substantial risk of being
convicted if the [j]ury believed the state[’]s [e]vidence.”

    Because of this plea, Williams was charged with violating
the mandatory condition of federal supervised release that
requires that a defendant “shall not commit another federal,
state or local crime.” At a revocation hearing on October 9,
2012, Williams argued that his Alford plea was not probative
evidence of the commission of a crime and instead proved
only his conviction, which is not itself a violation of any
condition of his supervised release. Williams urged that an
evidentiary hearing was therefore necessary to determine
whether he had in fact committed a state crime.

    Rejecting these arguments, the district court on October
11, 2012 issued an order finding that Williams had violated
the condition prohibiting him from committing a state crime
because Williams “pled guilty to committing a crime in state
court.” Although recognizing that Williams had entered an
Alford plea maintaining his innocence as to the state charges,
the district court nevertheless concluded that Williams
“acknowledged that the state could prove he had committed
a crime beyond a reasonable doubt.” Given this, an
evidentiary hearing to determine whether Williams
committed the charged crime would be “a waste of judicial
resources and redundant.” The district court therefore revoked
defendant’s supervised release and sentenced him to eighteen
                UNITED STATES V. WILLIAMS                    5

months’ imprisonment with credit for any time served. In so
doing, the district court recognized that its holding was
contrary to a Third Circuit case cited by Williams, United
States v. Poellnitz, 372 F.3d 562 (3d Cir. 2004).

                       DISCUSSION

    We review a district court’s decision to revoke a term of
supervised release for an abuse of discretion. United States v.
Daniel, 209 F.3d 1091, 1094 (9th Cir. 2000), amended on
other grounds by 216 F.3d 1201 (9th Cir. 2000). When,
however, a district court is said to have abused its discretion
by basing its ruling on an erroneous view of the law, we
review the legal issue de novo. United States v. Morales,
108 F.3d 1031, 1035 (9th Cir. 1997); United States v.
McConney, 728 F.2d 1195, 1201 (9th Cir. 1984) (en banc),
overruled on other grounds by Estate of Merchant v. Comm’r
of Internal Revenue, 947 F.2d 1390, 1392–93 (9th Cir. 1991).

    The effect of the Alford plea here is governed by state
law. Cf. Poellnitz, 372 F.3d at 567. The question of whether
an Alford plea entered in Washington is legally sufficient by
itself to warrant a finding that a person on supervised release
violated the prohibition against committing a new state crime
is a matter of first impression in the Ninth Circuit. But the
conclusion that it is generally insufficient follows from this
Court’s holding in United States v. Nguyen, 465 F.3d 1128
(9th Cir. 2006), that a “conviction resulting from a nolo
contendere plea under these circumstances is not by itself
sufficient evidence to prove a defendant committed the
underlying crime.” Id. at 1130–31. Although Nguyen
concerned the effect of a nolo contendere plea in a
subsequent criminal trial requiring proof beyond a reasonable
doubt of a prior crime’s commission as an element of the new
6               UNITED STATES V. WILLIAMS

charge, the logic of its holding applies with equal force here.
See id. at 1129–30. Indeed, that was the conclusion of the
Third Circuit, which held a nolo contendere plea to be
insufficient evidence to revoke supervised release in
Poellnitz, 372 F.3d at 565 (“We conclude that the District
Court erred as a legal matter in relying on the nolo plea as
evidence of commission of a crime.”). See also United States
v. Bress, No. 7:02-CR-22-7F, 2013 WL 1730145, at *5
(E.D.N.C. Apr. 22, 2013) (“In the context of an Alford plea,
where the Defendant does not admit guilt, ambiguous
language indicating [he] agreed there were facts to support
the plea is not sufficient to demonstrate that [he] committed
a state crime.”).

    The plain language of the condition of supervised release
that Williams was alleged to have violated bears repeating:
“The defendant shall not commit another federal, state or
local crime” (emphasis added) — a mandatory condition
under 18 U.S.C. § 3583(d). The same statute would permit a
district court to impose as a discretionary condition of
supervised release a requirement that the defendant not be
convicted of another federal, state, or local crime, but no such
condition was imposed on Williams here. See 18 U.S.C.
§ 3583(d) (“The court may order, as a further condition of
supervised release . . . any other condition it considers to be
appropriate . . . .”). Such a discretionary condition would give
a federal defendant on supervised release charged with a state
crime notice that a state Alford or nolo contendere plea would
have federal consequences.

   Both Nguyen and Poellnitz rely on this distinction
between commission of a crime and conviction of a crime.
See Nguyen, 465 F.3d at 1130 (“[T]he government had to
prove that he had committed one or more crimes. That is not
               UNITED STATES V. WILLIAMS                    7

quite the same as proving that he had been convicted on
criminal charges.”); Poellnitz, 372 F.3d at 566 (“The
condition was not that defendant shall not be convicted of
another crime. What is forbidden is illegal conduct, not
another judgment of conviction.”). This distinction often
disfavors individuals on supervised release who, although not
convicted of another crime beyond a reasonable doubt, may
nevertheless be subject to revocation of supervised release by
evidence establishing by a preponderance of the evidence that
they committed another crime. But this distinction may also
cut the other way: One can be convicted of a crime without
having actually committed it, as may be the case with Alford
and nolo contendere pleas, not to mention an Alford plea to
an unsupported charge, as permitted by In re Barr.

    Like the nolo contendere plea in Nguyen, an Alford plea
is not treated in Washington as probative evidence. This
important difference between Washington and California law
distinguishes this outcome from those of United States v.
Guadarrama, 742 F.2d 487 (9th Cir. 1984), and United States
v. Verduzco, 330 F.3d 1182 (9th Cir. 2003), both of which
upheld the use of nolo contendere pleas as evidence of a
crime’s commission because California law treated them as
such in the felony context. See Verduzco, 330 F.3d at 1185
(“Guadarrama relied on California Penal Code § 1016, which
provided then, as it does now: The legal effect of [a nolo
contendere] plea, to a crime punishable as a felony, shall be
the same as that of a plea of guilty for all purposes.”)
(brackets in original, paragraph break omitted). The treatment
of a nolo contendere plea under Pennsylvania law was
likewise the “critical question,” according to the Third
Circuit, in determining its effect in a federal violation of
supervised release proceeding. Poellnitz, 372 F.3d at 565.
State law providing that an Alford or nolo contendere plea is
8                  UNITED STATES V. WILLIAMS

to be treated the same as a guilty plea, like California’s, will
overcome the general proposition that it is not sufficient
evidence of the underlying crime charged.

    Unlike California’s statutory treatment of nolo contendere
pleas, Washington does not treat Alford pleas as probative of
the commission of a crime. Most recently, in Clark v. Baines,
84 P.3d 245, 251 (Wash. 2004), the Washington Supreme
Court held that, unlike a verdict or unreserved guilty plea
allocution, an Alford plea could not “be said to be preclusive
of the underlying facts and issues in a subsequent civil
action.” As the Washington Court of Appeals remarked, “by
entering an Alford plea,” the defendant “clearly manifested
his intention not to make . . . an admission” to the underlying
facts. State v. Young, 754 P.2d 147 (Wash. Ct. App. 1988).
That court squarely rejected the argument “that it would be
unduly burdensome to require that facts not admitted by the
defendant must be proved in an evidentiary hearing in order
to be considered by the sentencing judge.” Id. at 150.1

   Williams also argues on appeal that the district court
should be reversed because, in refusing to hear any evidence

    1
     The key Washington case relied on by the government concerns the
admissibility, not the probative value, of an Alford plea and indeed itself
confirms Washington’s treatment of Alford pleas as insufficient evidence
to establish the underlying facts of the charged offenses. See New York
Underwriters Ins. Co. v. Doty, 794 P.2d 521, 524 (Wash. Ct. App. 1990)
(finding an Alford plea to be admissible as a party admission, but stating
that “McGrath prevents this court from finding that Doty’s Alford-type
plea proves that he intended his acts,” and discussing Safeco Ins. Co. of
Am. v. McGrath, 708 P.2d 657 (Wash. 1985)). Here, although our holding
does not depend on it, the lack of evidentiary value of Williams’s Alford
plea is particularly plain because he pleaded guilty to a crime that he
concededly did not commit but that was accepted pursuant to the legal
fiction authorized by Washington’s In re Barr doctrine.
                UNITED STATES V. WILLIAMS                      9

beyond the Alford plea during the revocation proceeding, the
court violated his right to due process. See United States v.
Diaz-Burgos, 601 F.2d 983, 984 (9th Cir. 1979) (reversing
and remanding despite an “obvious” violation of probation
because “the trial court refused to hear any testimony or
witnesses”). Because we reverse the district court on the legal
question of whether an Alford plea is sufficient evidence, we
do not reach the due process issue.

    For the foregoing reasons, we conclude that an Alford
plea is insufficient evidence to prove commission of a state
crime for purposes of a federal supervised release violation
when the state itself does not treat it as sufficiently probative
of the fact that the defendant actually committed the acts
constituting the crime or crimes of conviction. Accordingly,
we reverse and vacate the district court’s order revoking
supervised release and remand for proceedings consistent
with this opinion.

    REVERSED, VACATED, AND REMANDED.
