                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 20 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   17-50439

              Plaintiff-Appellee,                D.C. No.
                                                 2:07-cr-01240-ODW-1
 v.

JOHN KENNETH SCHIEFER,                           MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

                          Submitted September 12, 2019**
                               Pasadena, California

Before: RAWLINSON, IKUTA, and BENNETT, Circuit Judges.

      John Kenneth Schiefer appeals from a judgment and commitment order

following revocation of his supervised release. We have jurisdiction under 18

U.S.C. § 3742 and 28 U.S.C. § 1291.


      *
             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).
      The district court did not plainly err when it imposed a supervised-release

condition that permits searches by law enforcement based on “reasonable suspicion

if such suspicion exists in the minds of law enforcement concerning a violation of

a condition of supervision or any other unlawful conduct,” because the phrase

“reasonable suspicion” requires that officers have an objectively reasonable

suspicion before conducting a search, see Ornelas v. United States, 517 U.S. 690,

696 (1996); United States v. Magallon-Lopez, 817 F.3d 671, 675 (9th Cir. 2016).

Moreover, there is no clear or controlling authority ruling that a court may not

impose such a supervised-release condition; to the contrary, a court may impose a

suspicionless search condition for the “person and property” of federal felons on

supervised release, United States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007).

      The district court did not plainly procedurally err in applying the sentencing

factors in 18 U.S.C. § 3583(e), because its decision was based on permissible

considerations, including that Schiefer: (i) “pose[d] a danger to the community,”

see § 3583(e); § 3553(a)(2)(C), (ii) appeared to have “no intention of curbing his

conduct,” see § 3583(e); § 3553(a)(2)(B), and (iii) had “breached every single

condition [of supervised release] that has been imposed [by the court],” see United

States v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007) (providing that district court

may sanction violator for “breach of trust”). Further, the district court expressly


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adopted the government’s arguments for imposing an above-guideline sentence,

which were based on permissible considerations, and explained that the sentence

was “sufficient, but not greater than necessary, to comply with the purposes set

forth in [§] 3553(a) as limited by [§] 3583(e).” Read in context, the district court’s

comment that Schiefer had “no respect for the law” merely explained why Schiefer

posed a danger to the community and why the sentence was needed to deter future

misconduct; it does not indicate that the district court imposed the sentence

“primarily . . . to promote respect for the law.” United States v. Miqbel, 444 F.3d

1173, 1180 (9th Cir. 2006).

      The parties agree that three of the standard supervised-release conditions and

one of the special conditions imposed on Schiefer are unconstitutionally vague in

light of United States v. Evans, 883 F.3d 1154, 1162–64 (9th Cir. 2018). In the

interest of justice and the expedient use of judicial resources, we modify those

conditions as follows:

      •      Condition 5: strike “and meet other family responsibilities.”

      •      Condition 6: strike “regularly.”

      •      Condition 14: strike “third parties of risks that may be occasioned by

             the defendant’s criminal record or personal history or characteristics”




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            and replace that language with “specific persons of specific risks

            posed by defendant’s criminal record.”

      •     Special Condition 14: strike “third parties, including employers, of

            risks that may be occasioned by defendant’s criminal record or

            personal history or characteristics” and replace that language with

            “specific persons of specific risks posed by defendant’s criminal

            record.”

See United States v. Hall, 912 F.3d 1224, 1226–27 (9th Cir. 2019) (per curiam).

      AFFIRMED as MODIFIED.




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