                                NOT FOR PUBLICATION                       FILED
                     UNITED STATES COURT OF APPEALS                        MAY 2 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No.   15-10048

                 Plaintiff-Appellee,             D.C. No.
                                                 3:08-cr-00042-RCJ-VPC-1
 v.

SKYLER JAMES FOWLER,                             ORDER AMENDING

                 Defendant-Appellant.

Before: SCHROEDER, TASHIMA, and OWENS, Circuit Judges.

      The memorandum disposition filed on March 1, 2017, is amended as

follows: On page 3 line 14 before the sentence beginning “Accordingly, we

remand this case,” insert the sentence “On the claim that the district court erred in

denying Fowler’s request to proceed pro se, we find that there was no reversible

error in the court’s denial.”

      With this amendment, the petitions for panel rehearing and rehearing en

banc are denied. Judge Owens has voted to deny the petitions for panel rehearing

and rehearing en banc, and Judge Schroeder has so recommended. Judge Tashima

has voted to grant the petition for panel rehearing and recommends granting the

petition for rehearing en banc.

      The full court has been advised of the petition for rehearing en banc, and no
judge of the court has requested a vote on it. Fed. R. App. P. 35.

      The petitions for panel rehearing and rehearing en banc are DENIED. No

further petitions for rehearing will be entertained.




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                                                                                 FILED
United States v. Fowler, 15-10048
                                                                                 MAY 02 2017
                                                                             MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS
TASHIMA, Circuit Judge, dissenting from the denial of rehearing:

       I dissent from the panel’s order denying the petition for panel rehearing and

rehearing en banc. It is apparent to me now that our refusal to reach the merits of

any of the issues Fowler raised respecting the conditions of his supervised release

is not sanctioned by any statute or case law and denies Fowler his statutory right to

a direct appeal from his conviction and sentence.

       Fowler challenged, inter alia, the length of his supervised release term and

four special conditions of supervised release imposed by the district court. While

the appeal was pending, Fowler pled guilty to a state crime in a different case.

       Rather than decide the merits of Fowler’s challenges, the panel has

remanded this case to the district court “in light of . . . recent events,” i.e., in light

of Fowler’s guilty plea in the state case. The panel does not hold that Fowler’s

state-court guilty plea rendered this appeal moot. Instead, the panel speculates that

“the conditions of that supervised release may become moot” if, for example, “the

district court revokes Fowler’s supervised release” or chooses to “re-examine” the

conditions “at a time closer to Fowler’s release from state custody, if he is ever

released.” But the same possibility that supervised release “may become moot”



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lurks in every case in which supervised release is imposed (sometimes mandated

by the Sentencing Guidelines) following a long sentence of imprisonment. These

weaknesses in our supervised release scheme, as enacted by Congress, have been

well summarized by the Seventh Circuit:

              Because conditions of supervised release, though imposed at
      sentencing, do not become operational until the defendant is released, the
      judge has to guess what conditions are likely to make sense when the
      defendant is released. The longer the sentence, the less likely the guess is to
      prove accurate. Conditions that may seem sensible at sentencing may not be
      sensible many years later, when the defendant is finally released from
      prison. (Defendant Siegel was sentenced to 30 years in prison.) And while
      it’s true that conditions of supervised release can be modified at any time, 18
      U.S.C. § 3583(e)(2), modification is a bother for the judge, especially when,
      as must be common in cases involving very long sentences, modification
      becomes the responsibility of the sentencing judge’s successor because the
      sentencing judge has retired in the meantime.

United States v. Siegel, 753 F.3d 705, 708 (7th Cir. 2014).

      But even with its weaknesses, this is the regime of supervised release

mandated by Congress, which includes a defendant’s right to challenge the

conditions of his supervised release on direct appeal from the sentence. See 18

U.S.C. § 3742(a). The majority’s approach of refusing to decide their merits now

deprives Fowler of this statutory right to appeal his sentence, including the terms

of his supervised release. The majority acknowledges that this appeal is not moot

and may never become moot, thus permanently depriving Fowler of his statutory



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right to test the conditions of his supervised release on appeal.

      Because nothing in the law absolves us from deciding the merits of this

appeal, I respectfully dissent from the denial of Fowler’s petition for rehearing.




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