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259 F. 525 
Pagc 14 
259 F. 525, 170 C.C.A. 487 
(Cite as: 259 F. 525) 
threatened to refuse to sell internal revenue stamps 
to be placed on beer or barrels of beer, and have 
been at all times and still am ready and willing to 
sell the brewers all such stamps as they may wish to 
purchase.' 
He also states: 
'Affiant further says that while he held the office of 
collector of internal revenue of the Third district of 
New York, as aforesaid, he never did at any time 
make any threat or threats with respect to or in any 
manner or form as alleged in paragraph XI of the 
bill of complaint, or in any way or manner with 
respect to the matters or things therein alleged.' 
In view of these affidavits, I fmd no justification for 
the issuance of an injunction against McElligott. 
The intention to do the prohibited acts is not shown 
to exist, but is expressly shown not to exist. 
In Real Estate Trust Co. I Hatton, 194 Pa. 449, 45 
Atl. 379, it was held that where the defendant, by 
answer and in open court, disclaimed any intention 
of doing the acts sought to be enjoined, a 
preliminary injunction should be denied, but that 
the bill would be retained, with leave to the plaintiff 
to apply for an injunction if the defendant 
disregarded his avowed intention. 
Under the circumstances existing in this case, and in 
view of the fact that the defendant McElligott is a 
responsible official of the government, who 
disclaims any intention of doing the acts he is 
alleged to intend to commit, I am of the opinion that 
the bill should be dismissed as to him, as well as to 
the United States attorney, but for a different 
reason. As I understand, the law courts do not 
grant injunctions to allay fears and apprehensions 
without evidence that there are sufficient reasons 
for the fears and apprehensions which are alleged to 
be entertained. It must be made to appear to the 
court that the acts *541 against which protection is 
asked are not only threatened, but will in all 
probability be committed to the injury of the 
complainant, who must show reasonable ground for 
apprehending that it will otherwise be done. 16 
Am. & Eng.Encyc. 361. It is well to remember that 
there is no power the exercise of which is, in the 
opinion of the Supreme Court, more delicate than 
the issuing of an injunction. It is the strong arm of 
equity, which ought nr er to be extended, except in 
a clear case. Truly 
Mauer, 5 How. 142, 12 
L.Ed. 88. 
In view of the conclusion reached that the bill 
should be dismissed as to the United States 
attorney, it is not necessary to pass upon the 
question as to the construction to be given to the act 
of Congress approved November 21, 1918. The 
statute provides: 
'After May I, 1919, until the conclusion of the 
present war, and thereafter, until the termination of 
demobilization, the 
date of which shall be 
determined and proclaimed by the President of the 
United States, no grains, cereals, fruit, or other food 
product shall be used in the manufacture or 
production of beer, wine, or other intoxicating malt 
or vinous liquor for beverage purposes. After June 
30, 1919, until the conclusion of the present war, 
and thereafter until termination of demobilization, 
the date of which shall be determined and 
proclaimed by the President of the United States, no 
beer, wine, or other intoxicating malt or vinous 
liquor shall be sold for beverage purposes except 
for export.' 
As, however, it is desired that the judges express 
their opinion as to the meaning of the words, 'no 
beer, wine or other intoxicating malt or vinous 
liquor,' I state my opinion. It is that the rule of 
construction known as ejusdem generis applies. 
Where general words follow the enumeration of a 
particular class of things, the general words will be 
construed as applicable to things of the same class 
as that enumerated. The paramount duty of a court 
is to see that no effect shall be given to any law 
which violates the Constitution. After that the next 
duty is to see that effect is given to the legislative 
intent. I am unable to see any escape from the 
conclusion that Congress in enacting the law had in 
mind intoxicating liquors. In that conclusion I 
agree with my Associates. 
Whether beer containing not more than 2.75 per 
cent. of alcohol is intoxicating is not a question of 
law, but one of fact, and will be determined at the 
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259 F. 525 
259 F. 525, 170 C.C.A. 487 
(Cite as: 259 F. 525) 
final hearing upon the merits. 
The acts of Congress now under consideration 
contain no definition of what per cent. of alcohol 
makes liquor intoxicating. In a number of the 
states the statutes prohibit the use of all 'alcoholic' 
liquors for beverage purposes. In a large number 
the standard of an intoxicating beverage is fixed at 
one-half of I per cent. And for nearly 20 years the 
Bureau of Internal Revenue has treated beer 
containing one-half of I per cent. or more of 
alcohol as a malt liquor, and the brewers of the 
country have acquiesced in this definition of beer. 
And it is not unlikely that the present Congress, in 
enacting a Prohibition Enforcement Bill, will 
undertake to define what is intoxicating liquor, and 
if it does may undertake to fix the standard at 
one-half of 1 per cent. in accordance with the rule 
established for so many years in the Bureau of 
Internal Revenue. But, in the absence of some 
definitive legislation, the meaning of the term ' 
intoxicating liquors' is clearly •542 left as a 
question of fact, and not of law, and the courts 
cannot undertake to say, as matter of law, that 
liquor which contains 2.75 per cent. of alcohol by 
weight is not intoxicating. And neither the opinion 
of my Associates, nor the opinion of the district 
judge, contains anything to the contrary. In the 
opinion of the district judge he expressly declared ' 
that the question whether beer having 2.75 per cent. 
of alcohol is intoxicating' was not before him for 
decision. 
I summarize my conclusions as follows: 
I. The acts of Congress herein involved are 
constitutional. 
2. They relate to liquors which are intoxicating. 
3. Whether liquor which contains 2.75 per cent. of 
alcohol in weight is intoxicating is a question of 
fact, which will be determined as such when the 
case reaches final hearing, the majority of the court 
having decided that the bill should not be dismissed 
except as against the United States attorney. 
4. That the bill should have been dismissed not only 
as against the United States attorney, but also 
Page 15 
against the acting and deputy collector of internal 
revenue. 
5. That a United States attorney under certain 
circumstances may be restrained from instituting 
criminal proceedings under an unconstitutional law. 
6. That under the circumstances existing in this case 
he cannot be restrained from instituting such 
proceedings 
under 
a 
constitutional 
law, 
the 
construction 
of 
which 
it 
is 
alleged 
he 
misapprehends. 
HOUGH, Circuit Judge (dissenting in part). 
In the result reached by Judge WARD i concur, and 
with the opinion I agree, except in so far as it bases 
the modification of injunction order on a lack of 
power to stay the United States attorney' from 
instituting any and every criminal proceeding under 
any constitutional statute. 
The matter is one of degree, not of kind or power. 
A prosecuting officer's threatened act may be so 
preposterously 
unlawful 
(though 
not 
unconstitutional) as to justify the intervention of 
equity. 
Injunction is always against human action, and no 
logical difference, either as to wrong or remedy, can 
be pointed out between unconstitutional human 
action and similar action without color of law 
therefor. 
The wrong here complained of, however, was and is 
that of the Internal Revenue Department of the 
Treasury. Under laws in force long before 1918, 
every brewer (practically) brewed on sufferance of 
the commissioner. As July 1, 1919, approached 
that official threatened to refuse the licenses and 
stamps, without which brewing is absolutely illicit, 
and subjects the brewer to confiscatory proceedings 
and penalties of extreme severity. The plain intent 
was to enforce a strained construction of the act of 
November 21, 1918, by preventing brewers from 
complying with pre-existing and unrepealed law. 
So far as I can now see, the injunction against the 
collector stops that plan, and I regard the relief 
obtained below against the United States attorney as 
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259 F. 525 
Page 16 
259 F. 525, 170 C.C.A. 487 
(Cite as: 259 F. 525) 
in effect preventing that official from asking at the 
hands of a grand jury indictments for offenses 
created only by the act of November 21st itself. 
*543 Such possible indictments would not involve 
preliminary seizure of plant and tools, and they 
should be left to their course at common law, except 
under circumstances of extreme necessity, not here 
shown. This dissent, then, is limited to the reason 
assigned for a result to which I agree. 
C.A.2 1919. 
Jacob Hoffman Brewing Co.'. McElligott 
259 F. 525, 170 C.C.A. 487 
END OF DOCUMENT 
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F.3d 
— F.3d —, 2007 WL 4510264 (C.A.10 (Utah)) 
(Cite as: — F.3d 
sufficiently analogous guideline, (to sentence the 
defendant according to) the provisions of 18 U.S.C. 
§ 3553."U.S.S.G. § 2X5.I. Accordingly, under our 
case law, the district court first had to determine 
whether any guideline was sufficiently analogous 
be used in sentencing Mr. Rakes. United States 
Nichols, 169 F.3d 1255, 1270 (10th Cir.1999). f 
more than one sufficiently analogous guideline 
could be found, the court then had to assess which 
qualified as the most analogous, and employ it in 
sentencing Mr. Rakes. Id. at 1271.Put another way, 
the court first had to ask what analogous provisions 
were within the ballpark; it then had to ask which 
represented the best fit. On appeal, we review the 
district court's determinations on these scores de 
novo to the extent they rest on legal bases, and for 
clear error to the extent they rest 
factual 
findings. Id. at 1270-71;United States 11 Fortier, 
I80 F.3d 1217, 1225 (10th Cir.1999). Because the 
parties' dispute in this case involves only an 
interpretation of the Guidelines, our de novo 
standard applies. 
A 
On the first question posed by our test, we discern 
no material disagreement between the parties. We 
generally compare the elements of the defendant's 
crime to the elements of federal offenses already 
covered by specific Guidelines sections to ascertain 
which plausible analogies exist for sentencing. id. at 
1270.Here, the parties seem to agree that two 
candidates emerge from this process-Sections 2A6.1 
and 2A2.4. The offense of which the jury convicted 
Mr. Rakes requires (I) two or more persons to 
conspire (2) to prevent any person from discharging 
the duties of their office under the United States (3) 
by force, intimidation, or threat. Seel8 U.S.C. § 372 
. Guideline 2A6.I applies to threatening or 
harassing communications, and the majority of the 
offenses covered by that section capture the threat 
and intimidation aspect of 18 U.S.C. § 372, 
requiring a threat of harm against a person, and 
some require that the person be a particular officer 
of the United States. Seel8 U.S.C. §§ 32(c), 871, 
876, 877, 878(a), 879, 2332b(aX2); 47 U.S.C. § 
223(aXIXC)-(E); 49 U.S.C. § 46507. Meanwhile, 
guideline 2A2.4 applies to efforts to obstruct or 
Page 7 
impede various officers or employees of the United 
States by force, seel8 U.S.C. §§ III, 1501, 1502, 
to the obstruction of a federal law enforcement 
agent, seel8 U.S.C. § 3056(d), and to interference 
with the administration of internal revenue laws by 
force or threat of force, see26 U.S.C. § 7212(a). 
B 
*7 Which of these two provisions, 2A6.I or 2A2.4, 
is most analogous and thus properly employed in 
this case is where the dispute begins. The 
government argues, and the district court agreed, 
that 2A6.1 is the most analogous provision. Mr. 
Rakes disagrees, submitting that 2A2.4 is the apter 
section. The dispute is hardly inconsequential: 
under 2A6.1, with the appropriate adjustments for 
Mr. 
Rakes's 
criminal 
history 
and 
offense 
characteristics, his advisory Guidelines sentencing 
range is 63 to 78 months; under 2A2.4 with similar 
adjustments, his sentencing range is only 37 to 46 
months. 
In approaching the resolution of this dispute, we 
pause to acknowledge an antecedent complication. 
Our 
sister 
circuits 
have 
adopted 
competing 
approaches to the question of what information a 
court should look at 
when deciding which 
Guidelines section is the most analogous. See 
Nichols, 169 F.3d at 1271. Some courts restrict 
their analysis to the facts alleged in the indictment 
or info ation. Id; seeU.S.S.G. § 1B1.2(a); United 
States 
Saavedra, 148 
3d 1311, 1316-18 (11th 
Cir.1998); United States 
Hornsby, 
F.3d 336, 
338-39 (5th Cir.1996); 
nited States ■ Terry, 86 
F.3d 353, 357-78 (4th Cir.I996). Others look 
beyond such documents to examine the defendant's 
il
proven relevant conduct. Nichols, 1 
F.3d at 1271; 
seeU.S.S.G. § 1B1.3; United States 
Osborne, I
F.3d 434, 438 (8th Cir.1999); 
nited States 
Marqurlo, 149 F.3d 36, 45 (1st Cir.1998); United 
States 
Clay, 117 F.3d 317, 319-20 (6th Cir.1997) 
. The parties in this case do not advocate for either 
approach and because we conclude that the district 
court chose the appropriate guideline using either 
methodology, we decline to enter this inter-circuit 
fray today. 
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Page 8 
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Looking solely to the face of Count II of the 
indictment, it charged Mr. Rakes with a conspiracy 
to threaten and intimidate a federal prosecutor; 
alleged that he conspired to write a letter with 
threatening language, listing the street on which the 
victim 
lived; and 
contended that 
he or a 
co-conspirator sent the letter to the victim through 
the mail. Guideline 2A6.I appears most analogous 
to the offense conduct charged in Count II because, 
as the district court noted, it better captures the 
element of a letter seeking to threaten or intimidate 
a public official. The majority of the 2A6.I listed 
offenses concern threats of harm. SeeU.S.S.G. § 
2A6.1. By contrast, most (though admittedly not all) 
of the offenses listed as predicates for guideline 
2A2.4 do not involve threats or intimidation and the 
concomitant complexities and premeditation such 
actions imply, but instead concern simple assaults 
against officers of the United States. SeeU.S.S.G. § 
2A2.4. Accordingly, when compared against the 
indictment itself, 2A6.I appears the most analogous 
guideline. 
An examination of all the circumstances of the case 
confirms rather than alters this conclusion. The case 
actually proven at trial against Mr. Rakes centered 
around the threatening letter-focusing on 
his 
involvement in writing the letter, addressing it, and 
conveying its threat to the victim prosecutor. 
Although the evidence showed that Mr. Rakes 
sought to impede the prosecution of members of the 
Soldiers of Aryan Culture, it also demonstrated that 
he intended to accomplish this goal by means (at 
least in the first instance) of a premeditated and 
comparatively complex scheme of intimidation 
rather than by an act of simple assault. 
C 
•8 Mr. Rakes objects that, like 18 U.S.C. § 372, 
guideline 2A2.4 incorporates the fact that the victim 
was a governmental officer, while guideline 2A6.I 
is not necessarily so limited. And this is surely true. 
But while 2A6.I does not incorporate the official 
status of the victim into the base offense level, the 
Guidelines enhancement for an official victim, 
Section 3A1.2, expressly applies to 2A6.1 and not 
2A2.4. SeeU.S. S.G. § 2A2.4 n. 2. Thus, the status 
of the victim is covered by both provisions and no 
reason to distinguish between them. Confirming the 
point, the district court applied the official victim 
enhancement to Mr. Rakes's sentence, making his 
sentence under guideline 2A6.I track the elements 
of 18 U .S.C. § 372 almost exactly. 
Mr. Rakes next argues that guideline 2A2.4 is most 
analogous because 
its 
title, "Obstructing or 
impeding officers," employs an almost identical 
formulation as the title language of 18 U.S.C. § 372 
, "Conspiracy to impede or injure officer."But 
whether we adopt the face of the indictment test or 
the competing proven conduct test, in neither 
circumstance is the question as facile as matching 
titles of statutes and guidelines. Both require more 
analysis from us than that. Neither can titles of 
statutory or Guidelines provisions limit the pia' 
meaning of the provisions themselves. See Griffin 
Steeltek, Inc., 160 F.3d 591, 594 n. 4 (10 
Cir.1998) ("Mlle title to a statutory provision is not 
part of the law itself."); 2A Sutherland Statutory 
Construction § 47:3 (7th ed.) (stating the statutory 
title "does not constitute part of the statute and is 
not controlling regarding 
its construction or 
interpretation"). 
Looking beyond titles, Mr. Rakes suggests that 
guideline 2A2.4 is the most analogous because one 
of the statutes (though only one of the at least 30 
statutes) covered by the guideline, 26 U.S.C. § 7212 
, proscribes threatening conduct similar to that of 18 
U.S.C. § 372. Section 7212, part of the Internal 
Revenue Code, proscribes using force or threats of 
force, 
including 
threatening 
letters 
or 
communications, to intimidate or impede internal 
revenue officers or the administration of the internal 
revenue laws. 26 U.S.C. § 7212. 
Although we concede that the offense conduct in § 
7212 is similar to the § 372 offense conduct in this 
case to the extent both center on communicating 
threats to federal officers, Mr. Rakes's argument 
fails to take account of the fact that § 7212 actually 
consists of two parts with two different applicable 
guidelines. The first part, intimidating or impeding 
a tax administration officer of the United States, 
uses guideline 2A2.4, 
but the second 
part, 
obstructing or impeding the due administration of 
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- F.3d — 
- F.3d —, 2007 WI.. 4510264 (C.A. 10 (Utah)) 
(Cite as: — F.3d —) 
the internal revenue laws, employs guideline 2.11.2, 
obstruction of justice, which is more severe th 
2A2.4. See U.S.S.G. app. A; United States 
Gunwall, 1998 WL 482787, at *3 (10th Cir.I99 . 
And, in fact, guideline 211.2 imposes sentences 
more akin to those found in 2A6.I, the provision 
employed by the district court in this case. For 
example, given Mr. Rakes's offense conduct and 
criminal history, his 2A6.I advisory sentencing 
range would be 63-78 months; with the same 
offense characteristics and criminal history, his 
sentencing range under 2JI.2 would be 70-87 
months (as opposed to 37-46 months under 2A2.4). 
The indictment in this case not only charged Mr. 
Rakes with conspiring to threaten the prosecutor but 
also with conspiring to impede and thwart the 
prosecution of members of the Soldiers of Aryan 
Culture, that is, impede the due administration of 
the law. Thus, even if § 7212 were similar to the 
offense in this case, Mr. Rakes's conduct would 
likely implicate, and be more analogous to, the 
more severe guideline, not 2A2.4, as he urges. 
*9 Finally, Mr. Rakes contends that it was improper 
for the district court to sentence him under 
guideline 
2A6.I, 
threatening 
or 
harassing 
communications, when the court granted him an 
acquittal on mailing a threatening communication, 
18 U.S.C. § 876, which falls squarely within 
guideline 2A6.I. We have, however, already 
rejected precisely this argument in Nichols.There, 
the jury in the Oklahoma City bombing trial 
acquitted Terry Nichols on counts of first and 
second degree murder, but the district court 
sentenced 
him 
for 
his 
crime 
of 
conviction-conspiring to use a weapon of mass 
destruction-under the guideline applicable to first 
degree murder. Nichols, 169 F.3d at 1276 n. 7. We 
affirmed Mr. Nichols's sentence under the first 
degree murder guideline, finding that it was the 
most analogous, and his acquittal of murder did not 
affect our "most analogous guideline" Inquiry. See 
id at 1270-76;see also United States 
Sarracino, 
131 F.3d 943, 950 (10th Cir .1997) (finding no 
merit in the argument that acquittal of first degree 
murder should preclude use of the first degree 
murder offense level at sentencing). Mr. Rakes 
offers us no reason why Nichols does not control 
the outcome of his case on this point. 
Page 9 
•• • 
The district court's judgment is Affirmed. 
FN I. Mr. Rakes was not prosecuted for the 
offense that was the subject of his rejected 
plea agreement, misprision of a felony. 
Misprision of a felony is a lesser offense 
than conspiracy to impede or injure an 
officer, 
hence 
its 
more 
modest 
recommended sentencing range of 18 to 24 
months imprisonment. 
FN2. The government requested that its 
supplemental record, including the victim 
impact 
letter, 
the 
threat 
letter 
and 
envelope, and the first presentence report, 
be sealed-a motion that we provisionally 
granted on May 7, 2007, pending this 
panel's final decision. Today, we confirm 
our prior ruling and grant the government's 
(unopposed) motion. 
FN3.See a1so3 Charles Alan Wright et al., 
Federal Practice & Procedure § 524 (3d 
ed.) (reporting that Rule 32 was amended 
to respond to "the concern that the vitally 
important sentencing decision will be 
made
roneous information 
"); United States 
Hamad 495 F.3d 241, 
243 (6th Cir.2007 (holding that, because " 
escalation 
of a 
sentence 
based 
on 
undisclosed evidence raises serious due 
process concems,"Rule 32 requires 
a 
sentencing 
court 
"either 
to 
disclose 
sufficient details about the evidence to 
give 
the 
defendant 
a 
reasonable 
opportunity to respond or ... to refrain 
31
from 
ying on the evidence"); United 
States 
Baldrich, 471 F.3d 1110, 1113 
(9th 
ir.2006) (pointing out Rule 32's 
concern with ex parte communications that 
may result in the district court considering 
undisclosed or improper facts). 
C.A.10 (Utah),2007. 
U.S. I. Rakes 
-- F.3d --, 2007 WL 4510264 (C.A.10 (Utah)) 
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— F.3d — 
-- F.3d —, 2007 WL 4510264 (C.A.10 (Utah)) 
(Cite as: — F.3d —) 
END OF DOCUMENT 
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Westlaw. 
507 F.3d 1213 
Page I 
507 F.3d 1213, 07 Cal. Daily Op. Sett 13,202, 2007 Daily Journal D.A.R. 17,149 
(Cite as: 507 F.3d 1213) 
C 
U.S. I. Garcia 
C.A.9 (Wash.),2007. 
United States Court of Appeals,Ninth Circuit. 
UNITED STATES of America, Plaintiff-Appellee, 
v. 
Adrian GARCIA, Defendant-Appellant. 
United States of America, Plaintiff-Appellee, 
v. 
Ivan Tortes, Defendant-Appellant. 
United States of America, Plaintiff-Appellee, 
v. 
Miguel Plascencia-Alvarado, also known as Esteban 
Garcia-Morales also known as Angel Caloca, 
Defendant-Appellant. 
Nos. 05-30356, 05-30391, 05-30415. 
Argued and Submitted July 25, 2006. 
Submission Withdrawn Oct. 31, 2006. 
Resubmitted Nov. I, 2007. 
Filed Nov. 19, 2007. 
Background: Defendants pled guilty in the United 
States District Court for the Western District of 
Washington, Marsha J. Pechman, J., to drug 
conspiracy. Defendants appealed. 
Holdings: The Court of Appeals, Fisher, Circuit 
Judge, held that: 
(I) it lacked jurisdiction to review sentence 
imposed within range stipulated to in defendant's 
plea agreement: 
(2) drug testing supervised release condition did not 
impermissibly delegate authority to set maximum 
number of non-treatment drug tests to probation 
officer; and 
(3) district court could impose financial disclosure 
requirement to supervised release. 
Affirmed. 
\Vest Headnotes 
111 Criminal Law 110 0=1026.10(4) 
110 Criminal Law 
I IOXXIV Review 
110XXIV(D) Right of Review 
I 10k1025 Right of Defendant to Review 
110k1026.10 Waiver or Loss of Right 
110k1026.10(2) Plea of Guilty or 
Nolo Contendere 
II0k1026.10(4) 
k. 
Issues 
Considered. Most Cited Cases 
Court of Appeals lacked jurisdiction to review 
sentence imposed within range stipulated to in 
defendant's plea agreement, which was well within 
statutory maximum, since sentence was not imposed 
in violation of law and not contingent on 
Guidelines. 18 U.S.C.A. § 3742(a)(I); Fed.Rules 
Cr.Proc.Rule 11(c)(1XC), 18 U.S.C.A. 
121 Criminal Law 110 €=1023(1 I) 
I 10 Criminal Law 
110XXIV Review 
I 10XXIV(C) Decisions Reviewable 
10k1021 Decisions Reviewable 
I 10k1023 Appealable Judgments and 
Orders 
I 10k1023(1 
k. Requisites and 
Sufficiency of Judgment or Sentence. Most Cited 
Cases 
Appellate courts are granted limited jurisdiction to 
review a defendant's challenge to a district court's 
sentence. 18 U.S.C.A. § 3742(a). 
131 Criminal Law 110 C=1147 
110 Criminal Law 
I I0XXIV Review 
110XXIV(N) Discretion of Lower Court 
110k1147 k. In General. Most Cited Cases 
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507 F.3d 1213 
Page 2 
507 F.3d 1213, 07 Cal. Daily Op. Serv. 13,202. 2007 Daily Journal D.A.R. 17,149 
(Cite as: 507 F.3d 1213) 
The Court of Appeals generally defers to the 
district 
court in imposing supervised release 
conditions and reviews them for an abuse of 
discretion. 
141 Criminal Law 110 €='1042 
110 Criminal Law 
1 0XXIV Review 
110XXIV(E) Presentation and Reservation in 
Lower Court of Grounds of Review 
I 10XXIV(E)I In General 
110k1042 k. Sentence or Judgment. 
Most Cited Cases 
Where defendant did not object to the conditions of 
his supervised release before the sentencing court, 
the Court of Appeals reviews for plain error. 
151 Sentencing and Punishment 3501-1 C=1977(2) 
350H Sentencing and Punishment 
350HIX Probation and Related Dispositions 
350HIX(G) Conditions of Probation 
3501-MI964 
Particular 
Terms 
and 
Conditions 
350HkI977 Rehabilitation and Therapy 
350Hk I 977(2) k. Validity. Most 
Cited Cases 
Supervised release condition that defendant submit 
to one drug test within 15 days of release from 
imprisonment and at least two periodic drug tests 
thereafter did not impermissibly delegate authority 
to set maximum number of non-treatment drug tests 
to probation officer, where government conceded 
that probation office could conduct only the 
minimum three tests allowed for in order. 
161 Sentencing and Punishment 350H C=1983(2) 
350H Sentencing and Punishment 
350H1X Probation and Related Dispositions 
350HIX(G) Conditions of Probation 
3501-1k1964 
Particular 
Terms 
and 
Conditions 
350HkI983 Other Particular Conditions 
350HkI983(2) k. Validity. Most 
Cited Cases 
District court could impose financial disclosure 
requirement to supervised release for defendant 
who pled guilty to drug trafficking; defendant was 
involved in large scale drug conspiracy as drug 
supplier, defendant had history of drug abuse, if 
defendant received or spent significant funds in 
suspicious way probation office would have reason 
to believe that defendant recngaged with drug 
trafficking, and financial disclosure requirement 
reflected appreciation of nature of defendant's 
crimes and served to protect public from further 
crimes. 18 U.S.C.A. § 3553(aX 1 ), (aX2)(C). 
171 Sentencing and Punishment 350H e=.1983(I) 
350H Sentencing and Punishment 
350H1X Probation and Related Dispositions 
350HIX(G) Conditions of Probation 
3501-fic I 964 
Particular 
Terms 
and 
Conditions 
3501-M1983 Other Particular Conditions 
350Hk1983( I ) k. In General. Most 
Cited Cases 
A district court may impose a financial disclosure 
condition to supervised release even without 
ordering restitution, so long as the condition is 
reasonably related to the statutory sentencing 
factors, involves no greater deprivation of liberty 
than is reasonably necessary, and is consistent with 
pertinent policy statements of the Sentencing 
Commission. 18 U.S.C.A. § 3553(a). 
*1215 Mazy Anne Royle, Vancouver, WA, for 
defendant-appellant Adrian Garcia. 
Nancy 
L. 
Talner, 
Seattle, 
WA, 
for 
defendant-appellant Miguel Plascencia-Alvarado. 
Jeffrey E. Ellis, Law Offices of Ellis, Holmes & 
Witchley, 
PLLC, 
Seattle, 
WA, 
for 
defendant-appellant Ivan TOMS. 
John L. Lulejian (argued), Assistant United States 
Attorney, and James M. Lord, Assistant United 
States 
Attorney, 
Seattle, 
WA, 
for 
the 
plaintiff-appellee. 
Appeal from the United States District Court for the 
Western 
District of Washington; 
Marsha 
J. 
Pechman, District Judge, Presiding. D.C. Nos. 
CR-04-00301-0 I 6-MJ P, 
CR-04 -00301-003-M1P, 
CR-04-00301.007-MJP. 
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Before: 
J. 
CLIFFORD 
WALLACE, 
KIM 
MCLANE WARDLAW 
and RAYMOND C. 
FISHER, Circuit Judges. 
FISHER., Circuit Judge: 
This appeal requires us to consider several 
allegations of sentencing error. Initially, we must 
decide whether we have jurisdiction to review a 
sentence that is imposed in accordance with a plea 
agreement 
under 
Federal 
Rule of Criminal 
Procedure 11(cXIXC) and that is not contingent 
upon the advisory Sentencing Guidelines. We also 
must determine whether a district court commits 
plain error by failing to explicitly set the maximum 
number of non-treatment related drug tests to which 
the defendant will be exposed as a condition of 
supervised release. Finally, we must evaluate 
whether a district court commits plain error by 
imposing a financial disclosure condition on a 
defendant who has been convicted of a drug 
trafficking offense and has a history of drug use. 
We hold that we do not have jurisdiction to review 
a sentence within the range agreed to in a Rule II(c 
XIXC) plea agreement, and that the district court 
did not commit plain error by imposing either 
condition. 
I. Background 
Because the issues on appeal are exclusively related 
to sentencing, we need not recount detailed facts of 
the underlying criminal offenses to which the 
defendants pled guilty. Rather, we explain only 
those facts relevant to our resolution of the 
defendants' allegations of sentencing error. 
Adrian 
Garcia, 
Ivan 
Torres 
and 
Miguel 
Plascencia-Alvarado 
were all involved in a 
large-scale drug trafficking conspiracy in the 
Western District of Washington. After being 
charged with various crimes, all three entered into 
Rule 
II 
written 
plea 
agreements. 
See 
Fed.R.Crim.P. 11(cXIXC).Fm Garcia pled guilty 
to conspiracy to distribute less than 500 grams of 
*1216 cocaine in violation of 21 U.S.C. §§ 846 and 
841(bX1XC); Plascencia-Alvarado pled guilty to 
conspiracy to distribute methamphetamine and 
cocaine in violation of 21 U.S.C. §§ 846 and 
841(bXIXC); and Torres pled guilty to conspiracy 
Page 3 
to 
distribute 
less 
than 
five 
grams 
of 
methamphetamine and less than 50 grams of a 
mixture containing methamphetamine in violation 
of 21 U.S.C. §§ 846 and 841(b)(1)(C), as well as 
witness tampering in violation of 18 U.S.C. § 
1513(bX2). In accordance with their respective 
plea agreements, Garcia was sentenced to 48 
months imprisonment and Plascencia-Alvarado was 
sentenced to 60 months imprisonment. Torres was 
sentenced 
to 
66 
months 
imprisonment, also 
pursuant to his plea agreement, and is subject to 
various supervised release conditions. Garcia and 
Plascencia-Alvarado appeal their sentences, and 
Torres appeals the district court's imposition of 
certain supervised release conditions. 
FN I. Rule 11(cX1XC) provides in part: 
An attorney for the government and the 
defendant's attorney ... may discuss and 
reach a plea agreement.... If the defendant 
pleads guilty or nolo contendere to either a 
charged offense or a lesser or related 
offense, the plea agreement may specify 
that an attorney for the government will ... 
agree that a specific sentence or sentencing 
range is the appropriate disposition of the 
case, or that a particular provision of the 
Sentencing 
Guidelines, 
or 
policy 
statement, or sentencing factor does or 
does not apply (such a recommendation or 
request binds the court once the court 
accepts the plea agreement). 
A. Garcia and Plascencia-Alvarado 
Garcia's and Plascencia-Alvarado's plea agreements 
are nearly identical in all material respects. In both 
plea agreements, the defendants accepted that the 
maximum statutory penalty for their offenses is 20 
years imprisonment, waived their right to a trial and 
agreed that the district court "will consider the 
factors set forth in Title 18, United States Code, 
Section 3553(a), including the sentencing range 
calculated under the United States Sentencing 
Guidelines" 
but 
"is 
not 
bound 
by 
any 
recommendation regarding the sentence to be 
imposed, or by any calculation or estimation of the 
Sentencing Guidelines range offered by the parties, 
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or by the United States Probation Department." 
Most 
importantly, 
Garcia 
agreed 
that 
"the 
appropriate 
sentence of imprisonment 
to be 
imposed by the Court at the time of sentencing 
should be within the range of twenty-four (24) to 
forty-eight (48) months," and Plascencia-Alvarado 
agreed that the appropriate sentence in his case was 
"fifty-four (54) to ninety (90) months." In light of 
these stipulated sentencing ranges, the parties 
acknowledged that "the Court retains full discretion 
to impose a sentence within the range agreed to 
above." (Emphasis added.) 
At sentencing, the district court accepted Garcia's 
plea 
agreement 
and 
calculated 
the 
advisory 
guidelines range.F342 In so doing, the court, over 
Garcia's objection, attributed to him "the amount of 
cocaine that the Garcia arm of this organization was 
responsible for," which was nearly five kilograms. 
The district court also granted Garcia a three-point 
reduction for acceptance of responsibility, and 
adjusted 
downward 
the 
Presentence 
Report's 
criminal 
history 
calculation. 
After 
rejecting 
Garcia's request for a two-point reduction for his 
minor role in the offense, the district court arrived 
at a guidelines recommended range of 97 to 121 
months. However, because the district court had 
accepted the plea agreement, Garcia was ultimately 
sentenced to 48 months imprisonment.FN3 Garcia 
•1217 appeals this sentence, arguing that the 
district court erred in calculating the guidelines 
range because it applied the wrong burden of proof 
with respect to the drug quantity attributed to 
Garcia. Had the district court applied the correct 
evidentiary standard, Garcia argues, it would have 
arrived at a lower guidelines calculation and he 
would have received a 24-month sentence. 
FN2. During sentencing, the district court 
acknowledged 
that 
its 
guidelines 
calculation 
"appear-[t'd] 
academic 
... 
because [the court was] going to accept the 
11(cX1XC) plea agreement." 
FN3. ►n justifying its sentence at the high 
end of the stipulated range, the district 
court explained that the sentence was 
lower than the guidelines range, was " 
Page 4 
consistent with others who were" involved 
in similar offenses arising out of the 
conspiracy, 
reflected 
the 
quality 
of 
Garcia's cooperation with the government 
and served to deter others from criminal 
conduct. 
As with Garcia, the 
district 
court 
accepted 
Plascencia-Alvarado's 
plea 
agreement 
and 
calculated his advisory guidelines range to be 108 
to 135 months imprisonment. Plascencia-Alvarado 
argued to the district court that he should receive a 
54-month sentence (at the low end of the plea 
agreement stipulation) because of various equities 
he believed were in his favor, including his 
relationship with his young daughter. He further 
claimed that other similarly situated defendants 
received comparable sentences. The district court 
rejected 
these 
arguments 
and 
sentenced 
Plascencia-Alvarado to 60 months imprisonment 
(still at the lower end of his plea agreement's 
stipulated range).FN4 Plascencia-Alvarado appeals 
this sentence as unreasonable in light of the 18 
U.S.C. § 3553(a) factors. 
FN4. The district court judge explained 
that 
Plascencia-Alvarado's 
sentence 
reflected his role in the conspiracy, was 
comparable to that imposed upon others 
charged 
with 
similar 
conduct 
and 
accounted for his contrition and lack of 
prior drug trafficking offenses. 
B. Torres 
Torres' plea agreement stipulated to a fixed 
sentence of 66 months and acknowledged "that the 
Court retains full discretion with regard to the 
imposition of a term of supervised release, the 
conditions of supervised release, fines, forfeiture or 
restitution." At 
sentencing, 
the 
district 
court 
accepted the Rule I 1 plea agreement and sentenced 
Torres to the agreed upon term. The district court 
also imposed several conditions of supervised 
release, including that Tomes orshall submit to 
one drug test within 15 days of release from 
imprisonment and at least two periodic drug tests 
thereafter, as determined by the court;" (2) "shall 
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submit to mandatory drug testing pursuant to 18 
U.S.C. § 3563(aX5) and 18 U.S.C. § 3583(d)" 
(drug testing condition); and (3) "shall provide his 
probation officer with access to any requested 
financial information, including authorization to 
conduct credit checks and obtain copies of 
defendant's Federal Income Tax Returns" (financial 
disclosure condition). Although Tortes did not 
object to these conditions at sentencing, he now 
argues that the district court erred in imposing them. 
II. Analysis 
A. Garcia and Plascencia-AlwaradomF 
FNS. 
Because 
both 
Garcia's 
and 
Plascencia-Alvarado's challenges implicate 
the same dispositive issue, we address their 
claims jointly. 
[1] As an initial matter, the government argues that 
we lack jurisdiction to review these defendants' 
sentences because they each received a sentence 
within the range stipulated to in their plea 
agreemenB.FN6 That is, because the defendants 
received the benefit of their plea bargains, they may 
not now challenge the sentences. 
FN6. 
Neither 
Garcia 
nor 
Plascencia-Alvarado expressly waived the 
right to appeal the district court's sentence. 
CI United States l otyce, 357 F.3d 921, 
922-23 (9th Cir. 
) ("A defendant's 
waiver 
of 
his 
appellate 
rights 
is 
enforceable if the language of the waiver 
encompasses his right to appeal on the 
grounds raised, and if the waiver was 
knowingly and voluntarily made. Plea 
agreements 
are 
contracts 
between 
a 
defendant and the government, and we 
generally construe ambiguous language in 
favor of the defendant."(internal citations 
omitted)). 
*1218 [2] 18 U.S.C. § 3742(a) grants appellate 
Page 5 
courts limited jurisdiction to review a defendant's 
iiii
challen 
to a dieures 
sentence. See United 
States 
Barron- 
922 F.2d 549, 553 (9th 
Cir.199 . To 
entertain 
either 
Garcia's 
or 
Plascencia-Alvarado's claim of sentencing error, we 
must find that some provision of § 3742(a) applies, 
thus establishing our jurisdiction. Specifically, the 
statute provides in relevant part: 
(a) Appeal by a defendant. A defendant may file a 
notice of appeal in the district court for review of an 
otherwise final sentence if the sentence-
(1) was imposed in violation of law; 
(2) was imposed as a result of an incorrect 
application of the sentencing guidelines; or 
(3) is greater than the sentence specified in the 
applicable guideline range to the extent that the 
sentence includes a greater fine or term of 
imprisonment, probation, or supervised release than 
the maximum established in the guideline range ...; 
or 
(4) was imposed for an offense for which there is no 
sentencing guideline and is plainly unreasonable. 
18 U.S.C. § 3742(a). Garcia asserts that we may 
review his sentence for guidelines calculation error 
under either 
§ 
3742(aX 1 ) or (2), 
whereas 
Plascencia-Alvarado relies only on § 3742(aX1) to 
argue that we have jurisdiction to determine 
whether his sentence is unreasonable.Fm We 
conclude that we are without jurisdiction to 
entertain either Garcia's or Plascencia-Alvarado's 
appeal. 
FN7. There was some discussion at oral 
argument regarding the applicability of I8 
U.S.C. § 3742(c), which provides that " 
[i]n the case of a plea agreement that 
includes a specific sentence under rule [11( 
cX1XC) ] of the Federal Rules of Criminal 
Procedure-0) a defendant may not file a 
notice of appeal under paragraph (3) or (4) 
of [18 U.S.C. § 3742(a) ] unless the 
sentence imposed is greater than the 
sentence set forth in such agreement." 
Because 
neither 
Garcia 
nor 
Plascencia-Alvarado 
asserts 
that 
§ 
3742(aX3) or (4) applies, we need not 
explore whether § 3742(c), which by its 
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terms refers only to a plea agreement 
providing for a specific sentence, applies 
to cases such as this where the plea 
agreement 
provides 
for 
a 
specific 
sentencing range. 
Section 3742(aX1) allows us to review a sentence " 
imposed in violation of law." We have held that 
where a defendant is given the minimum sentence 
permit 
by the statute of conviction, see United 
States 
Littlefield 105 F.3d 527, 528 (9th 
Cir.199 , or a sentence within the statutory 
maximum, see United States I Baramdyka, 95 F.3d 
840, 843-44 (9th Cir.1996), such a sentence is not 
illegal, and therefore does not violate the law. In 
this case, our jurisdiction is not established under § 
3742(aX1) 
because 
both 
Garcia 
and 
Plascencia-Alvarado received sentences well within 
the statutory maximums. Therefore their sentences 
were not "imposed in violation of law." 
More recently, we held that § 3742(a)(I) confers 
jurisdiction to review sentences imposed within the 
advisory 
guidelines 
range if the 
defendant 
challenges the sentence as unreasonable under the § 
3553(a) factors, because unreasonable sentences 
"imposed in violation of law." Unireatirares
Plouffe, 445 F.3d 1126, 1130 (9th Cir.2006) (" 
sentence that is within the Guidelines range ... may 
be unreasonable and thus imposed in violation of 
law pursuant to § 3742(aXI)."). Garcia and 
Plascencia-Alvarado invoke Moab to argue that 
jurisdiction properly lies because their sentences 
failed to satisfy § 3553(a) either because the 
guidelines range was improperly computed, see§ 
3553(aX4), or because the other factors were not 
properly 
weighed. 
However, 
Plouffe 
is 
inapplicable to the sentences in this case. Plouffe 
considered only appeals of sentences imposed *1219 
within and pursuant to the applicable advisory 
guidelines range. Plouffe, 445 F.3d at 1129-30. In 
reasoning that we have jurisdiction to review even 
li 
within-guidelines 
sentences 
r reasonableness, 
Plouffe relied on United States 
Booker, 543 U.S. 
220, 125 S.Ct. 738, 160 L.Ed.2 621 (2005), which 
held that the reasonableness (and therefore legality) 
of a sentence must be evaluated in light of all of the 
§ 
3553(a) 
factors, 
not 
just 
the 
guidelines 
calculation. Plauffe, 445 F.3d at 1130 (citing 
Booker, 543 U.S. at 245-46, 125 S.Ct. 738). 
Unlike Plouffe, Garcia and Plascencia-Alvarado 
were not sentenced pursuant to the guidelines. 
Their sentences were within the range they agreed 
to in their Rule 11(cX1XC) plea agreements, and 
although each agreement contemplated that the 
district court would calculate the guidelines range, 
it did not condition the sentence on a properly 
calculated range. We have already held that such 
stipulated sentences need not comport with the 
guidelines, as 
they 
are "not based on 
[g]uidelines." 
FN8 
United 
States 
Pacheco-Navarette, 
432 F.3d 967, 971 (9 
Cir.2005) ("We conclude that, where a defendant 
was sentenced after pleading guilty pursuant to a 
plea agreement that included a specific sentence 
stipulation that did not exceed the statutory 
maximum and was not contingent upon the 
Guidelines, remand is not 
ired to comport with 
Booker and (United States Ameline, 409 F.3d 
1073( 
Cir.2005) (en bane ."); see also United 
States Cieslowski, 410 F.3d 353, 364 (7th 
Cir.200 ("A sentence imposed under a Rule 11(c)( 
1XC) plea arises directly from the agreement itself, 
not from the Guidelines, even though the court can 
and should consult the Guidelines in deciding 
whether to accept the plea. As Booker is 
concerned 
with 
sentences 
arising under 
the 
Guidelines, it is inapplicable in this situation." 
(internal citation omitted)). Consequently, we hold 
that we do not have jurisdiction to review a 
sentence that was imposed pursuant to a Rule 11(cX 
1XC) plea agreement and was not contingent on the 
guidelines, where the defendant claims only that 
there was some error in the district court's 
i
calculation of the guidelines 
r application of 
Booker."49 See United States 
Silva, 413 F.3d 
1283, 1284 (10th Cir.2005) ("Si va's only plausible 
argument [that the court has jurisdiction] is that his 
sentence was imposed in violation of law because it 
was given under a mandatory sentencing scheme. 
But this argument fails for the simple and obvious 
reason that Silva received the specific sentence he 
bargained for as part of his guilty plea."). We 
therefore dismiss Garcia and Plascencia-Alvarado's 
appeals of their sentences. 
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FN8. Because Garcia's Rule 
1(cX1XC) 
stipulated sentence was not conditioned by 
a requirement that it comport with the 
guidelines, and was not contingent upon 
them, 
his 
argument 
that 
we 
have 
jurisdiction under § 3742(aX2) must also 
fail. 
FN9. As in Pacheco-Navarette, we do not 
here address "whether or to what extent a 
plea agreement containing a stipulation of 
a particular Guideline range or a sentence 
otherwise based or contingent upon the 
Guidelines 
must 
comport 
with 
the 
Guidelines, as that situation is not before 
us." 432 F.3d at 971 n. 3. Furthermore, 
because we lack jurisdiction to review 
Garcia's 
and 
Plascencia-Alvarado's 
sentences, 
we 
do 
not 
address 
the 
applicability of Rita 
United States, — 
U.S. -, 127 S.Ct 
168 L.Ed.2d 203 
(2007), United States 
Corry, 453 F.3d 
1214 (9th Cir.2006), reh'g en bane 
granted,462 F.
 1066 (9th Cir.2006), or 
United States 
Zavala, 443 F.3d 1165 
(9th Cir.2006), reh'g en bane granted,462 
F.3d 1066 (9th Cir.2006). 
B. Torres 
Torres challenges the district court's imposition of 
both the drug testing and financial disclosure 
conditions. As to drug testing, Torres argues that 
the district court erred in failing to specify the 
maximum number of non-treatment drug tests, 
*1220 
thereby 
impermissibly 
delegating 
that 
authort to Torres' probation officer. See United 
States 
Stephens, 424 F.3d 876, 881 (9th Cir.2005) 
(holding that "a probation officer may not decide 
the ... extent of the punishment imposed," because " 
[u]nder our constitutional system the right to ... 
impose the punishment provided by law is judicial" 
(alteration in original) (internal quotation marks and 
punctuation omitted)). Torres also argues that the 
district court abused its discretion in imposing the 
financial disclosure condition because it is not " 
reasonably related to the crime of conviction." 
[3][4] We generally defer to the district court in 
imposing supervised release conditions and revie
them for an abuse of discretion. United States 
Johnson, 998 F.2d 696, 697(9th Cir.I993). 
Because Torres did not object to the conditions of 
his supervised release before the sentencing court, 
however, we review for plain error. See Stephens, 
424 F.3d at 879 n. I. We conclude there was no 
error, much less plain error, in the district court's 
sentence. 
1. Drug Testing Condition 
[5] The district court directed Torres to "submit to 
one drug test within 15 days of release from 
imprisonment and at least two periodic drug tests 
thereafter, as determined by the court" and to " 
submit to mandatory drug testing pursuant to 18 
U.S.C. § 3563(aX5) and 18 U.S.C. § 3583(d)." nu° 
Although recitation of this 
boilerplate drug 
testing language established the minimum number 
of drug tests to which Tortes would be subject, it 
does not appear to establish a maximum number of 
such tests. However, as we held in Stephens:1hr 
[sentencing] courts [have] the responsibility of 
stating the maximum number of [drug] tests to be 
performed or to set a range for the permissible 
number of tests." 424 F.3d at 883(concluding that " 
while the district court itself determined the 
minimum number of tests to which [the defendant] 
would be required to submit, the court erred when it 
failed 
to 
state 
the 
maximum 
number 
of 
non-treatment drug tests the probation officer could 
impose"). Unlike in Stephens, where the district 
court expressly delegated the authority to set a 
maximum number of non-treatment drug tests to the 
probation officer, id at 878, in this case the district 
court made no such delegation. Nonetheless, 
because the district court did not set a maximum, 
Torres reasonably argues that the probation officer 
could be understood as having this authority, which 
would clearly violate Stephens. 
FNIO. 18 U.S.C. § 3563(aX5) applies to 
drug testing conditions of probation, 
whereas § 3583(d) applies to a condition 
of supervised 
release. 
Both 
statutory 
sections provide that courts shall order 
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as an explicit condition of [probation or 
supervised release,' that the defendant 
refrain from any unlawful use of a 
controlled substance and submit to [a] drug 
test within 15 days of release on [probation 
or supervised release] and at least 2 
periodic 
drug 
tests 
thereafter 
(as 
determined by the court) for use of a 
controlled substance. 
In United States' Maciei-Vasquez, 458 F.3d 
994(9th Cir.2006), cert. denied,-- U.S. -, 
127 
S.Ct. 2097, 167 L.Ed.2d 817 (2007), the defendant 
challenged a drug testing condition of supervised 
release 
that required him to "participate in 
outpatient substance abuse treatment and submit to 
drug and alcohol testing as instructed by the 
probation officer." Id. at 996(intemal quotation 
marks omitted). We observed that this condition 
would be permissible if imposed incidental to a 
drug treatment program, but would be improper 
under Stephens if it were to be understood as 
granting "the probation officer authority to require 
testing apart from any treatment program." Id. 
However, we refused to 9221 determine the 
purpose of the drug testing because the defendant 
did not object at sentencing and could not establish 
any plain error. Id. Unlike in Mae/et-Vasquez the 
government here concedes that "the Probation 
Office may conduct only the minimum three tests 
allowed for in the order." Indeed, it is clear that 
district courts that seek to impose more than the 
statutory minimum of three drug tests must 
explicitly do so at sentencing. See United States
Lewandowski, 372 F.3d 470, 471 (1st Cir.2 
(per curiam). Given the government's concession, 
we construe the district court's supervised release 
condition as implicitly limiting the maximum 
number of drug tests to three. Torres must submit 
to at least and at most "one drug test within 15 days 
of release from imprisonment and ... two periodic 
drug tests thereafter." Should the probation office 
believe more drug tests are necessary, it would have 
to request a modification from the district court. 
Any such modification would of course have to 
comply with Stephens. Thus construed, there is no 
error in the district court's drug testing condition. 
2. Financial Disclosure Condition 
[6][7] District courts are encouraged to impose a 
financial disclosure condition when they require a 
defendant 
to 
pay 
restitution. 
SeeU.S.S.G. 
§ 
5DI.3(dX3Xinstructing that 
where 
"the court 
imposes an order of restitution, forfeiture, or notice 
to victims, or orders the defendant to pay a fine," it 
should also impose "a condition requiring the 
defendant to provide the probation officer access to 
any requested financial information"). However, a 
district court may impose such a condition even 
without ordering restitution, so long as 
the 
condition satisfies certain criteria.n" I First, it 
t
must be "reasonably related to the fact 
set forth 
in 18 U.S.C. § 3553(a)." United States ■ Gallaher, 
275 Fid 784, 793 (9th Cir2001); see 
so United 
States 
Brown, 402 F.3d 133, 137 (2d Cir.2005) C' 
[T]he Guidelines recommend a fmancial disclosure 
special condition where the court imposes a fine or 
restitution. By its own terms, however, this policy 
statement does not preclude a court from requiring 
financial disclosure in other `appropriate' situations. 
"(internal citation omitted)). Second, it must " 
f
involve no greater deprivation of libe 
than is 
reasonably necessary...."United States 
Fellows, 
157 F.3d 1197, 1204 (9th Cir.1998). 
malty, the 
condition "must be consistent with pertinent policy 
statements of the Sentencing Commission." Id 
FNII. Moreover, 
contrary 
to 
Torres' 
argument otherwise, the condition need not 
I
"be related to 
offense of conviction." 
United States 
Wise, 391 F.3d 1027, 
1031 (9th Cir.2 
). 
The fmancial disclosure requirement imposed on 
Torres satisfies all three criteria, and the district 
court did not commit plain error by imposing the 
condition. Torres was involved in a large scale 
drug conspiracy as a drug supplier. Torres also has 
a history of drug abuse. Clearly, if Torres is 
receiving 
or 
spending 
significant 
funds 
in 
suspicious ways, the probation office would have 
reason to believe he has reengaged with drug 
trafficking or use and would so report to the district 
court. 
Requiring Torres 
to disclose 
financial 
information, at the very least, reflects appreciation 
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507 F.3d 1213 
Page 9 
507 F.3d 1213, 07 Cal. Daily Op. Serv. 13,202, 2007 Daily Journal D.A.R. 17,149 
(Cite as: 507 F.3d 1213) 
of "the nature and circumstances of the offense and 
[his] history and characteristics" and serves "to 
protect the public front further crimes." 18 U.S.C. § 
§ 3553(a)(I), (aX2XC). And the probation office's 
monitoring is no greater than necessary to achieve 
these ends. 
We join our sister circuits in concluding that certain 
defendants who have been convicted of drug 
trafficking offenses may properly be required to 
disclose the details of their personal finances as a 
condition of *1222 supervised release. See Brown, 
402 F.3d at 137(affirming financial disclosure 
condition imposed on defendant convicted of drug 
trafficking in part because "given this particular 
defendant's personal characteristics and history, the 
financial disclosure requirement is an effective 
monitoring-and 
hence 
deterring-device" 
and 
because "monitoring [the defendant's] finances will . 
.. serve to protect the public from ' further crimes 
the 
defendant' 
"); 
United 
States 
Alelendez-Santana, 353 F.3d 93, 107 (1st Cir.200 
(affirming financial disclosure condition imposed 
on a similarly situated defendant because it is 
related to the characteristics of the defendant and 
iii 
deters future crimi I conduct), overruled on other 
grounds by U.S. 
Padilla, 415 rd 
211 
(1st
Cir.2005) (en banc ; United States 
Behler, 187 
F.3d 772, 780 (8th Cir.1999) (affirming financial 
disclosure condition because "the district court 
understood that money and greed were at the heart 
()tithe defendant's] drug distribution offenses and 
believed that monitoring [the defendant's] financial 
situation would aid in detecting any return to his 
former lifestyle of drug distribution"). Therefore 
the district court did not plainly err in imposing this 
condition. 
Ill. Conclusion 
Garcia and Plascencia-Alvarado were sentenced to 
a term that was within the range they agreed to in 
their Rule 11(cX1XO plea agreement, which was 
not contingent upon the guidelines. Consequently, 
we do not have jurisdiction under 18 U.S.C. §§ 
3742(aX I) or (aX2) to review challenges to their 
sentences. Tomes' supervised release drug testing 
condition, as construed by this court, is not 
improper, nor is the financial disclosure condition. 
Garcia's and Plascencia-Alvarado's appeals are 
DISMISSED. Tones' 
sentence 
(including the 
conditions of supervised release) is AFFIRMED. 
C.A.9 (Wash.),2007. 
U.S. 1 Garcia 
507 F.3d 1213, 07 Cal. Daily Op. Serv. 13,202, 
2007 Daily Journal D.A.R. 17,149 
END OF DOCUMENT 
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westia,, 
42 U.S.C.A. § 16913 
Page 1 
Effective: July 27, 2006 
United States Code Annotated Currentness 
Title 42. The Public Health and Welfare 
Chapter 151. Child Protection and Safety 
Su Subchapter I. Sex Offender Registration and Notification 
Sit Part A. Sex Offender Registration and Notification 
• § 16913. Registry requirements for sex offenders 
(a) In general 
A sex offender shall register, and keep the registration current, in each jurisdiction where the offender resides, 
wheiroTtender is an employee, and where the offender is a student. For initial registration purposes only, a sex 
offender shall also register in the jurisdiction in which convicted if such jurisdiction is different from the 
jurisdiction of residence. 
(b) Initial registration 
The sex offender shall initially register--
(I) before completing a sentence of imprisonment with respect to the offense giving rise to the registration 
requirement: or 
(2) not later than 3 business days after being sentenced for that offense, if the sex offender is not sentenced to 
a term of imprisonment. 
(c) Keeping the registration current 
A sex offender shall, not later than 3 business days after each change of name, residence, employment, or student 
status, appear in person in at least I jurisdiction involved pursuant to subsection (a) of this section and inform that 
jurisdiction of all changes in the information required for that offender in the sex offender registry. That 
jurisdiction shall immediately provide that information to all other jurisdictions in which the offender is required to 
register. 
(d) Initial registration of sex offenders unable to comply with subsection (b) of this section 
The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to 
sex offenders convicted before July 27, 2006 or its implementation in a particular jurisdiction, and to prescribe 
rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to 
comply with subsection (b) of this section. 
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42 U.S.C.A. § 16913 
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(e) State penalty for failure to comply 
Each jurisdiction, other than a Federally recognized Indian tribe, shall provide a criminal penalty that includes a 
maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the 
requirements of this subchapter. 
CREDIT(S) 
(Pub.L. 109-248, Title I, § 113, July 27, 2006, 120 Stat. 593.) 
HISTORICAL AND STATUTORY NOTES 
Revision Notes and Legislative Reports 
2006 Acts. Statement by President, see 2006 U.S. Code Cong. and Adm. News, p. S35. 
References in Text 
This subchapter, referred to in subsets. (d) and (e) originally read "this title", meaning Title 11§ 101 et seq.] of 
Pub.L. 109-248, July 27, 2006, 120 Stat. 590, known as the Sex Offender Registration and Notification Act, which 
enacted this subchapter; for complete classification, see Short Title note set out under 42 U.S.C.A. § 16901 and 
Tables. 
NOTES OF DECISIONS 
Commerce clause 7 
Constitutional delegation of authority 2 
Ex post facto 6 
Procedural due process 3 
Retroactive application 1 
Standing 5 
Substantive due process 4 
Venue 8 
I. Retroactive application 
Defendant was required to register as a sex offender, pursuant to the Sex Offender Registration and Notification 
Act (SORNA), regardless of whether the Attorney General had adopted required rule specifying the applicability of 
1
the Act to sex offenders convicted before its enactment; defe ant was required to register or update his 
registration under the existing state law of his residence. U.S. 
Hinen, W.D.Va.2007, 487 F.Supp.2d 747. 
Mental Health it= 469(2) 
Sex Offender Registration and Notification Act's (SORNA) requirement that sex offenders register and update their 
registration did not apply to defendants at the time of their indictments where their convictions pre-dated SORNA 
and they were indicted after SORNA's effective date, but before the Attorney General exercised his authority under 
SORNA and issued an interim rule that made it clear that SORNA applied to sex offenders regardless of when they 
were convicted: the indictments occurred in the brief window during which SORNA's scope remained undefined as 
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42 U.S.C.A. § 16913 
Page 3 
to past offenders, and th statute required the Attorney General to animate SORNA's provisions to previously 
convicted offenders. U.S. I. Kapp, M.D.Pa.2007, 487 F.Supp.2d 536. Statutes 0= 278.29 
2. Constitutional delegation of authority 
Provision of Sex Offender Registration and Notification Act (SORNA) which gave Attorney General authority to 
decide whether persons classified as sex offenders, who were unable to register, should be subject to the 
registration requirements, was not unconstitutional, in violation of the non-delegation doctrine, as applied to 
defendant, a previously-convicted sex offender; the delegation of authority to the Attorney General was not so 
broad as to be violative of the non-deleglon doctrine, and defendant was not a person who was unable to register 
within the meaning of the provision. U.S. 
Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 0= 433(2) 
3. Procedural due process 
Sex Offender Registration and Notification Act (SORNA) did not violate the procedural due process rights of 
defendant, a previously-convicted sex offender, by failing to give him actual notice that travel across state lin 
subjected him to criminal penalties; defendant had sufficient notice that failing to register was illegal. U.S. 
Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 0= 433(2) 
4. Substantive due process 
Sex Offender Registration and Notification Act (SORNA) did not, by subjecting to the Act's requirements persons 
who were not in fact convicted of an offense listed as a qualifying sex offense, or whose conviction was set aside, 
is 
violate the substantive due process rights of defendant, a previously-convicted sex offender; defendant fel quarely 
within the category of persons required to register, and his conviction had not been set aside. U.S. 
Hinen, 
W.D.Va.2007, 487 F.Supp.2d 747. Mental Health C
 433(2) 
5. Standing 
Previously-convicted sex offender who could allege no injuries traceable to the Sex Offender Registration and 
i
Notification Act's (SORNA) alleged violations of procedural and su tantive due process did not have standing to 
challenge the constitutionality of the Act on such grounds. U.S. 
Hinen, W.D.Va.2007, 487 F.Supp.2d 747. 
Constitutional Law 0= 885 
6. Ex post facto 
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register 
as a sex offender (FFR), did not violate the Ex Post Facto Clause by inflicting greater punishment on defendant, a 
previously-convicted sex offender, than was provided by law when he was convicted; Act's legislative history 
indicated that Congress's concern was with public safety rather than with a desire to further punish sex offenders, 
r
d the registration requirements were not so punitive as to negate Congress's intent that they be nonpunitive. U.S. 
Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health 0= 433(2) 
7. Commerce clause 
Sex Offender Registration and Notification Act (SORNA), and the federal offense it created, of failing to register 
as a sex offender (FFR), was a proper exercise of Congressional authority under the Commerce Clause; FFR had at 
ast a de minimis effect on interstate travel, since it regulated sex offenders who traveled across state lines. U.S. 
Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Mental Health a
 433(2) 
8. Venue 
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42 U.S.C.A. § 16913 
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Failing to register as a sex offender, pursuant to the Sex Offender Registration and Notification Act (SORNA), was 
s
a continuing offense, and therefore venue was 
in prosecution for traveling in interstate commerce and 
failing to register as a sex offender, in either 
the state in which defendant's travel originated, or in 
Tennessee, the place to which defendant changed is residicy and in which he failed to register, failure to register 
involved an element of interstate or foreign travel. U.S. 
Hinen, W.D.Va.2007, 487 F.Supp.2d 747. Criminal 
Law 0= 113 
42 U.S.C.A. § 16913, 42 USCA § 16913 
Current through P.L. 110-133 approved 12-6-07 
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