                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 6 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-10449

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

 v.
                                                MEMORANDUM*
CHARLES M.F. KAHALEHOE,

                Defendant-Appellant.

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

                      Argued and Submitted October 9, 2018
                               Honolulu, Hawaii

Before: WARDLAW, BERZON, and RAWLINSON, Circuit Judges.

      Charles Kahalehoe appeals the imposition of a special condition of

supervised release that prohibits him from enrolling in any “classes aimed at

becoming a drug or certified substance abuse counselor . . . for a period of

approximately one year.” We review a challenged supervised release condition for

abuse of discretion when trial counsel objects to the condition, and whether a



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
special condition violates the Constitution de novo. United States v. Aquino, 794

F.3d 1033, 1036 (9th Cir. 2015). We have jurisdiction pursuant to 18 U.S.C. §

3742 and 28 U.S.C. § 1291. We vacate the condition of supervised release and

remand with instructions to strike the condition from the judgment.

      1. The expiration of the special condition on September 1, 2018 does not

moot Kahalehoe’s claim.1 Kahalehoe remains on supervised release, and the

condition may be re-imposed. It is therefore “capable of repetition, yet evading

review.” Foster v. Carson, 347 F.3d 742, 746 (9th Cir. 2003) (quoting Cole v.

Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir. 2000)). The district

court has already twice imposed almost identical educational restrictions on

Kahalehoe. It is thus reasonably likely that if Kahalehoe violates the conditions of

his supervised release again, the district court would once more impose a similar

educational restriction. Moreover, “the challenged action is too short in duration to

be fully litigated before cessation or expiration.” Id. (quoting Cole, 228 F.3d at

1098).

      2. The district court abused its discretion in imposing the special condition.

The condition does not “reasonably relate[] to the goals of deterrence, protection of

the public, and/or defendant rehabilitation,” and it involves “greater deprivation of



      1
             In a prior appeal, we ruled that this claim was not moot. See United
States v. Kahalehoe, 693 F. App’x 597, 598 (9th Cir. 2017) (mem.).

                                          2
liberty than is reasonably necessary to achieve those goals.” United States v.

Napulou, 593 F.3d 1041, 1044 (9th Cir. 2010) (discussing the requirements of 18

U.S.C. § 3583(d) on supervised release conditions).

      First, there is no logical nexus between an educational restriction and the

goal of deterring illegal drug use while on supervised release. See 18 U.S.C. §

3553(a)(2)(B). Moreover, the district court’s conclusory reasoning—that the

condition “is reasonably related to deterrence because it demonstrates to others that

there are consequences to repeated use of controlled substances while on

supervised release”—fails to elucidate how the specific condition would realize the

deterrent effect of the special condition, as distinct from the obvious consequences

of violating the prohibition of using controlled substances themselves—revocation

and imprisonment.

      Second, the district court erroneously concluded that the special condition

“protects the public by requiring [Kahalehoe] to demonstrate that he is able to

maintain his own sobriety before he provides counseling to the public on how to

maintain sobriety.” See 18 U.S.C. § 3553(a)(2)(C). Again, nothing logically

tethers an educational restriction to the statutory goal of protecting the public. The

restriction does not prohibit Kahalehoe from working as a substance abuse

counselor, which he previously did so for many years. No record evidence shows

how the condition actually protects the public in any way.


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      Third, the special condition does not reasonably relate to Kahalehoe’s

rehabilitation. See 18 U.S.C. § 3553(a)(2)(D). Record evidence neither ties

Kahalehoe’s supervised release violations involving drug use to the classes he took

before the district court imposed the special condition, nor connects his former

work as a substance abuse counselor to his offense of conviction. To the contrary,

the record indicates that Kahalehoe’s relapses occurred after he left school and that

Kahalehoe entered into drug trafficking after he left employment as a substance

abuse counselor. The special condition has no reasonable basis in the record, and

so involves greater deprivation of liberty than is reasonably necessary.

      Instead, the district court’s statements regarding the challenged special

condition evince a punitive purpose behind its imposition. The court opined that

“a person who is using drugs is [not] a suitable person to go and spend public

money to train to be a drug counselor,” and that “there are other people who

deserve [public funds Kahalehoe received in the form of an educational grant]

more” than he. But “[t]he provision of just punishment is not a criterion for

supervised release conditions.” United States v. Eyler, 67 F.3d 1386, 1393 (9th Cir.

1995) (emphasis added) (citation omitted); see also 18 U.S.C. § 3583(d)

(excluding 18 U.S.C. § 3553(a)(2)(A) from the factors to be considered in

imposing a condition of supervised release).

      3. The special condition is not an impermissible occupational restriction


                                          4
under United States Sentencing Guidelines § 5F1.5 because it does not prohibit

Kahalehoe from seeking employment in his pre-conviction profession, i.e., as a

non-certified substance abuse counselor. See United States v. Rearden, 349 F.3d

608, 622 (9th Cir. 2003); see also United States v. Daniels, 541 F.3d 915, 929 (9th

Cir. 2008).

      VACATED and REMANDED with instructions.




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