US v. Reyes, No. 20-50016 (11-26-21)(Collins w/Hurwitz; Higginson concurring). The 9th affirmed part of the sentence but vacated and remanded for resentencing about SR conditions. At sentencing for importation of drugs, the court imposed, without notice, a special SR condition for suspicionless police searches. The court cut defense counsel’s attempt to object off and note the objection. This was enough to preserve the record. When it comes to advance notice of a special condition of SR, the 9th holds advance notice must be given. Prior precedent, US v. Wise, 391 F.3d 1027 (9th Cir. 2004), requires such notice. The 9th rejected the Government’s contention that the Supreme Court in Irizarry v US, 553 US 708 (2008) overruled Wise. In Irizarry, the Court held no advance notice is required for a variance, as it is always in play. This is distinct from a special SR condition, where the parties had no notice of imposition.

On plain error review, the 9th rejected the requirement the court had to articulate why it denied defendant’s request for a downward departure or variance.

Concurring, Higginson would require a court to always articulate any discretionary SR condition, mandatory or special.

Congrats to Doug Keller, CJA, in Cal S.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2021/11/26/20-50016.pdf