UNITED STATES v. MARKILLIE (2021)

United States Court of Appeals, Ninth Circuit.2021-06-22No. No. 20-10151

Summary · law.co

Holding. The court affirmed the district court's imposition of the standard supervisory condition but vacated the 60-month supervised release term imposed on the false information count and remanded for the district court to impose a compliant term not exceeding 36 months.

David Markillie pleaded guilty to armed bank robbery and making false information/hoaxes, and received a 54-month prison sentence with 60 months of supervised release for each count, running concurrently. He appealed his sentence on three grounds. The court found that the 60-month supervised release term for the false information count violated statutory limits, as federal law caps supervised release for that class of felony at 36 months. The court rejected Markillie's constitutional challenge to a standard supervisory condition requiring him to notify others of risks he may pose, finding that precedent established the condition was not impermissibly vague. The court also declined to address Markillie's argument about home detention because he had already been released from federal custody, making that claim moot.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Statutory limits on supervised release terms for Class D felonies
Constitutional vagueness of standard supervisory release conditions
Mootness of claims regarding alternative sentencing methods

Procedural posture

Markillie appealed his sentence following his guilty plea and sentencing for armed bank robbery and false information/hoaxes charges.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

David Markillie pleaded guilty to one count of Armed Bank Robbery, 18 U.S.C. § 2113(a), (d), and one count of False Information and Hoaxes, 18 U.S.C. § 1038(a)(1). The district court sentenced him to 54 months’ imprisonment and 60 months’ supervised release for each count, to run concurrently. Markillie appeals his sentence. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, vacate in part, and remand for further proceedings.

1. Markillie argues that his 60-month supervised release term as to Count Two, the false information and hoaxes count, must be vacated or reduced to 36 months because the maximum term of supervised release for a class D felony is three years. See 18 U.S.C. § 3583(b)(2) (“the authorized term[ ] of supervised release ․ for a ․ Class D felony ․ [is] not more than three years[.]”). The Government concedes plain error. We therefore vacate the supervised release term imposed as to Count Two and remand for the district court to impose a term as to Count Two that does not exceed 36 months.

2. Markillie next argues that Standard Condition 12 of his supervised release is unconstitutionally vague. The Condition provides:

If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the person and confirm that you have notified the person about the risk.

However, our court has recently held in a published opinion that this exact condition is not unconstitutionally vague. See United States v. Gibson, 998 F.3d 415, 421–23 (9th Cir. 2021). We thus affirm the district courts imposition of Standard Condition 12.

3. Finally, Markillie argues that the district court abused its discretion in concluding that it lacked the authority to impose home detention instead of incarceration. Markillie was released from federal custody on June 11, 2021. This claim is now moot. See Cox v. McCarthy, 829 F.2d 800, 803 (9th Cir. 1987).

AFFIRMED in part, VACATED in part, and REMANDED.