                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                  June 26, 2018
                                       PUBLISH                Elisabeth A. Shumaker
                                                                  Clerk of Court
                    UNITED STATES COURT OF APPEALS

                                 TENTH CIRCUIT



 UNITED STATES OF AMERICA,

               Plaintiff - Appellee,
          v.                                            No. 17-1086
 KEITH HOWARD HULL,

               Defendant - Appellant.


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                     (D.C. NO. 1:16-CR-00297-PAB-1)


Submitted on the briefs: *

Virginia L. Grady, Federal Public Defender, and Veronica S. Rossman, Assistant
Federal Public Defender, Denver, Colorado, on the briefs for Appellant.

Robert C. Troyer, Acting United States Attorney, and J. Bishop Grewell,
Assistant United States Attorney, Denver, Colorado, on the brief for Appellee..


Before TYMKOVICH, Chief Judge, MURPHY, and McHUGH, Circuit Judges.


MURPHY, Circuit Judge.



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument.
I.    Introduction

      Defendant-Appellant Keith Howard Hull challenges one of the conditions

of supervised release imposed by the district court when it sentenced him for

committing bank robbery. The condition requires him to notify third parties of

risks he may pose to them. According to Hull, the condition is unconstitutionally

vague, an unconstitutional delegation of judicial authority, and an unlawful

occupational restriction. Exercising jurisdiction under 18 U.S.C. § 3742(a) and

28 U.S.C. § 1291, we affirm Hull’s sentence.

II.   Background

      Hull was charged by indictment with one count of bank robbery, in

violation of 18 U.S.C. § 2113(a). He pleaded guilty to the charge and a

Presentence Investigation Report (“PSR”) was prepared. The PSR recommended

a sentence of seventy-seven months and a three-year term of supervised release.

The term of supervised release included all the standard conditions adopted by the

United States District Court for the District of Colorado. Hull filed written

objections to the PSR. Relevant to the issue raised on appeal, he objected to the

recommendation that the district court impose Standard Condition Twelve, which

reads as follows:

      If the probation officer determines that you pose a risk to another
      person (including an organization), the probation officer may require
      you to notify the person about the risk and you must comply with


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       that instruction. The probation officer may contact the person and
       confirm that you have notified the person about the risk.

USSG § 5D1.3(c)(12).

       At the sentencing hearing, the district court imposed a sentence of ninety-

four months’ incarceration to be followed by a three-year term of supervised

release. The court also imposed, inter alia, Standard Condition Twelve, stating it

agreed with the probation department that it would be appropriate for the

probation department to invoke the condition “under the right circumstances.”

III.   Discussion

       A. Standard of Review

       Hull raises three challenges to his sentence. He asserts Standard Condition

Twelve is unconstitutionally vague, constitutes an unlawful delegation of judicial

authority to the probation department, and is an unlawful occupational restriction.

Because Hull preserved these challenges by making them below, our review is for

abuse of discretion. United States v. Muñoz, 812 F.3d 809, 817 (10th Cir. 2016).

“The district court abuses its discretion when a ruling is based on a clearly

erroneous finding of fact, an erroneous conclusion of law, or a clear error of

judgment.” Id.

       B. Vagueness Challenge

       In his main challenge to Standard Condition Twelve, Hull argues the

condition is unconstitutionally vague and violates the Due Process Clause of the


                                         -3-
Fifth Amendment. Specifically, he asserts the condition is insufficiently clear

and specific to fairly guide his conduct and lacks any standard for defining risk.

“[W]e use common sense to guide our interpretation of supervised release

conditions.” Muñoz, 812 F.3d at 815. Applying a “common sense, non-technical

reading” to Standard Condition Twelve, we conclude it is not unconstitutionally

vague. 1 United States v. Llantada, 815 F.3d 679, 682 (10th Cir. 2016).

      As to Hull’s assertion he lacks sufficient notice of what conduct would

constitute a violation of Standard Condition Twelve, the condition clearly and

specifically states that Hull must provide notice when required to do so by his

probation officer. There is no ambiguity in this directive. Hull’s obligation to

notify third parties when so instructed by his probation officer is clear from the

terms of the condition and can be understood by any ordinary person. See United

States v. Corrow, 119 F.3d 796, 802 (10th Cir. 1997).

      Hull makes the related argument that Standard Condition Twelve is vague

because it does not provide his probation officer with sufficient guidance to


      1
        Although the government does not so argue, it is possible Hull cannot raise
a due process vagueness challenge to Standard Condition Twelve. In Beckles v.
United States, the Supreme Court noted it has invalidated only two types of
criminal laws as void for vagueness: “laws that define criminal offenses and laws
that fix the permissible sentences for criminal offenses.” 137 S. Ct. 886, 892
(2017). The Beckles Court held that the advisory Sentencing “Guidelines are not
subject to a vagueness challenge under the Due Process Clause” because, instead
of fixing “the permissible range of sentences,” they only “guide the exercise of a
court’s discretion in choosing an appropriate sentence within the statutory range.”
Id.

                                         -4-
determine the sort of risks that trigger application of the condition. This

argument also fails. Sufficient guidance was given by the district court at

sentencing when it stated:

             And in terms of the objection to standard condition No. 12
      regarding the notification about a risk, I agree with the Probation
      Department on that one. For instance, let’s assume that Mr. Hull
      gets released and then he notifies the Probation Department that he is
      now employed by a cleaning service, and one of the places that they
      clean are banks. That would be a really good reason to have him
      notify the cleaning service that he has been convicted of bank
      robbery before, not once, but a couple of times.

      ....

             So I think the objection to that particular condition is
      overruled. And I think that the nature of the defendant’s criminal
      history, in particular, you know, home invasion robberies, bank
      robberies, it’s perfectly appropriate that there would be some type of
      condition like that that would—that could be invoked by the
      Probation Department under the right circumstances, so I overrule
      the objection to that.

These statements provide clear direction to the probation department by tying

Standard Condition Twelve to the risks associated with Hull’s criminal history,

including home invasion robberies and bank robberies. Offering further guidance,

the court stated it agreed with the probation department’s justification for

recommending Standard Condition Twelve. That justification was contained in

the probation officer’s following response to Hull’s written objection to the PSR.

      The purpose of this condition is to notify others of physical or
      financial harm that may be caused by the defendant to provide them
      with the necessary information to avoid risk of victimization.
      Further, this condition serves the statutory sentencing purpose of

                                         -5-
      public protection at 18 U.S.C. §3553(a)(2)(C). From an
      implementation perspective, the identification and management of
      third party risk requires a careful analysis by the probation officer
      that considers both the seriousness of the risk created and the
      possible jeopardy to the offender’s employment or other aspects of
      rehabilitation. Reasonably foreseeable risk may be addressed in
      numerous ways, including changes in supervision strategies and
      disclosures to third parties, just to name a few. In many cases, there
      will be no identified risk; therefore, this condition is never
      implemented. However, due to the fluid nature of an individual’s life
      circumstances, the determination of whether specific third party risk
      exists must be made in real time during a term of supervision; not
      during the sentencing process. As such, the Probation Office asserts
      this condition is necessary for the protection of potential third parties
      at risk, and recommends that it be imposed as approved in General
      Order 2016-1 to allow for the ongoing assessment of risk during the
      term of supervision.

      Read together with the district court’s oral statements and applying a

common sense approach, Standard Condition Twelve provides sufficient guidance

to the probation department. Hull’s prior convictions for bank robbery and home

invasion provide any necessary context for the condition and inform the probation

department’s task of determining which parties may be at risk for financial or

physical harm. Thus, the condition is not vague and provides sufficient guidance

as to what risks must be disclosed and to whom.

      C. Delegation of Judicial Functions

      Hull next argues Standard Condition Twelve improperly delegates judicial

functions to the probation department, in violation of Article III of the

Constitution. We apply a de novo standard of review to this challenge. United

States v. Ullmann, 788 F.3d 1260, 1264 (10th Cir. 2015).

                                         -6-
      To decide whether a condition of supervised release improperly
      delegates sentencing authority to a probation officer, we distinguish
      between permissible delegations that merely task the probation
      officer with performing ministerial acts or support services related to
      the punishment imposed and impermissible delegations that allow the
      officer to decide the nature or extent of the defendant’s punishment.

United States v. White, 782 F.3d 1118, 1141 (10th Cir. 2015) (quotation and

alterations omitted)).

      Hull acknowledges “that probation officers have broad authority to advise

and supervise probationers.” United States v. Mike, 632 F.3d 686, 695 (10th Cir.

2011) (quotation omitted). He asserts, however, that Standard Condition Twelve

grants the probation department “unfettered discretion” to decide whether, as well

as how, the condition should be applied. But, as we concluded above, the district

court cabined the probation department’s discretion. Further, when the probation

department identifies a risk by applying the criteria set out by the district court, it

has no discretion to determine whether Hull must give the notice contemplated by

Standard Condition Twelve. At the sentencing hearing, the district court

specifically instructed the probation department that it must require Hull to give

notice if a risk is identified. R. at 228 (“[I]t’s important that [the probation

department] be able to assess those situations, and if one of them seems to

indicate a risk, that they would require notification.”); Ullmann, 788 F.3d at 1264

(“An oral pronouncement of sentence from the bench controls over written

language.” (alteration and quotation omitted)).


                                           -7-
      Standard Condition Twelve is applicable only to those risks relating to

Hull’s history of bank robberies and home invasions. Because it is specific as to

the circumstances in which it applies, it does not permit the probation department

to decide the nature or extent of Hull’s punishment. Once a risk is identified, the

probation department must require Hull to comply with the notification

requirement. The only power left to the probation department is the ministerial

task of determining the steps Hull must take to satisfy his obligation to comply.

Accordingly, Standard Condition Twelve is not an unconstitutional delegation of

judicial authority.

      D. Occupational Restriction

      Hull also challenges Standard Condition Twelve as an unlawful

occupational restriction. He argues a district court may not require him to notify

an employer about his criminal history as a condition of supervised release unless

the court first makes the findings required by USSG § 5F1.5. We conclude

Standard Condition Twelve is not an occupational restriction.

      An occupational restriction is “a condition of probation or supervised

release prohibiting the defendant from engaging in a specified occupation,

business, or profession, or limiting the terms on which the defendant may do so.”

USSG § 5F1.5(a). Occupational restrictions are not recommended by the

Guidelines but may be imposed as a condition of supervised release if the district

court first makes the findings detailed in USSG § 5F1.5(a). Standard Condition

                                         -8-
Twelve, on the other hand, is one of the many standard conditions of supervised

release “recommended” by the Sentencing Guidelines. USSG § 5D1.3(c). This

court has held that no supporting findings are required to impose a standard

condition of supervision. Muñoz, 812 F.3d at 823.

      On its face, Standard Condition Twelve does not prohibit Hull “from

engaging in a specified occupation, business, or profession, or limit[] the terms on

which” he may do so. USSG § 5F1.5(a). Hull argues, however, that it is an

occupational restriction because he may be required to notify an employer about

his prior convictions. The authority on which he relies does not support this

proposition.

      In United States v. Souser, 405 F.3d 1162 (10th Cir. 2005), a condition of

supervised release similar to Standard Condition Twelve required the defendant to

notify third parties of risks occasioned by her criminal record. Id. at 1163-64.

Informal local policy contained in the probation office’s internal manual

interpreted this condition to require the defendant to inform her employer of “any

prior criminal history that is relevant to the employment situation.” Id. at 1164.

The district court interpreted the condition to require the defendant to notify her

employer of her conviction. Id. at 1166. As so interpreted, this court held the

condition was an occupational restriction. Id. at 1165-66. Souser is not

applicable here because the district court did not impose Standard Condition

Twelve under the mistaken belief that it requires Hull to notify any and all

                                         -9-
employers of his convictions. As set out above, the court’s understanding of the

limited applicability of the condition is clear from the example it offered of the

limited circumstances under which Hull would be required to provide notice to an

employer (i.e., his employment by a cleaning service that cleans banks). United

States v. Mike, is similarly unpersuasive. Like the condition imposed in Souser,

the one imposed in Mike was struck down because it required the defendant to

notify all employers of his convictions. 632 F.3d at 698.

      Standard Condition Twelve does not prohibit Hull from engaging in any

particular profession and it does not categorically require him to notify employers

of his convictions. Accordingly, it is not an occupational restriction and USSG

§ 5F1.5 is inapplicable.

IV.   Conclusion

      The sentence imposed by the district court is affirmed.




                                         -10-
