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United States v. Malone

United States Court of Appeals, Tenth Circuit

September 11, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
ASHTON B. MALONE, Defendant-Appellant.

          Appeal from the United States District Court for the District of Kansas (D.C. No. 6:17-CR-10154-JWB-1)

          Dean Sanderford, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.

          James A. Brown, Assistant United States Attorney (Stephen R. McAllister, United States Attorney, with him on the brief), Topeka Kansas, for Plaintiff-Appellee.

          Before MATHESON, SEYMOUR, and BACHARACH, Circuit Judges.

          Seymour, Circuit Judge.

         Ashton B. Malone was convicted on two counts of distributing methamphetamine on July 12, 2018 and was sentenced to 151 months' custody followed by five years of supervised release. At sentencing, the district court imposed all the various conditions of supervised release set forth in the Presentence Investigation Report ("PSR"), including a special condition requiring Mr. Malone to undergo mental health treatment. Contained within this special condition was the mandate for Mr. Malone to "take prescribed medication as directed" by mental health staff or a treating physician, the requirement that is the subject of this appeal. Rec., vol. III at 28. Mr. Malone did not object to this proposed condition in either his written objections to the PSR or at sentencing. He argues on appeal that the district court's failure to make particularized findings to support this condition was plain error compelling reversal. We agree and accordingly reverse.


         On July 12, 2018, Mr. Malone was convicted after a jury trial on two counts of distributing methamphetamine. The PSR prepared by the United States Probation Office set forth various sentencing recommendations. Among these was a special condition of supervised release requiring Mr. Malone to undergo mental health treatment and, correspondingly, to "take prescribed medication as directed."

         At sentencing, the district court announced its intention "to impose the mandatory and special conditions of supervision set forth" in the PSR, rec., vol. II at 335, which included the aforementioned condition concerning medication. Although the court stated that the "[n]ature of the offense and history outlined in the presentence report warrant the conditions for participation in the cognitive behavioral programs; participation in substance abuse and mental health counseling; and allowing searches of defendant's person and property," id., it made no findings to support either the imposition of the mental health condition or its embedded medication directive.

         Defense counsel did not object to either the condition or the court's failure to make supporting findings, responding in the negative when the court asked if there were any objections. Mr. Malone now contends that the court's failure to make particularized findings was plain error requiring reversal. The government counters that Mr. Malone is not entitled to appellate review because he waived this issue in the district court and, alternatively, that the condition can be construed narrowly to avoid reversal under plain error review.


         There is no question that Mr. Malone did not make a timely objection. Ordinarily, when an error claimed on appeal was not presented below, we apply plain error review and will reverse "only if there is (1) error, (2) that is plain, which (3) affects substantial rights, and which (4) seriously affects the fairness, integrity, or public reputation of judicial proceedings." United States v. Teague, 443 F.3d 1310, 1314 (10th Cir. 2006) (citation and quotation mark omitted). However, "not every unpreserved claim of error is entitled to plain error review." Id. "[A] party that has forfeited a right by failing to make a proper objection may obtain relief for plain error; but a party that has waived a right is not entitled to appellate relief." United States v. Cruz-Rodriguez, 570 F.3d 1179, 1183 (10th Cir. 2009) (emphasis in original) (citation omitted). Waiver occurs when a party deliberately considers an issue and makes an intentional decision to forgo it. While forfeiture comes about through neglect, waiver is accomplished by intent. Id. Thus, the applicable standard of review here turns on whether Mr. Malone affirmatively waived review of this issue or merely forfeited it.

         The government argues that Mr. Malone's situation was "tantamount to the classic waiver situation where a party actually identified the issue, deliberately considered it, and then affirmatively acted in a manner that abandoned any claim on the issue." Aple. Br. at 10 (quoting Cruz-Rodriguez, 570 F.3d at 1185); see also United States v. Carrasco-Salazar, 494 F.3d 1270, 1273 (10th Cir. 2007) ("There can be no clearer intentional relinquishment or abandonment of a known right, than when the court brings the defendant's prior objection to his attention, asks whether it has been resolved, and the defendant affirmatively indicates that it has.") (internal citations and quotation marks omitted). But Mr. Malone correctly counters that the present case can be more closely analogized to our decision in United States v. Figueroa-Labrada, 720 F.3d 1258 (10th Cir. 2013). As in Figueroa-Labrada, defense counsel here did not object to the PSR even when explicitly given the opportunity to do so. But he did nothing to indicate that he affirmatively wished to waive the district court's requirement to ...

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