USA v. Kieon Jennings

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11404
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KIEON JENNINGS,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 0:21-cr-60193-BB-1
____________________
USCA11 Case: 22-11404 Document: 39-1 Date Filed: 04/07/2023 Page: 1 of 6

-- 1 of 6 --

2 Opinion of the Court 22-11404
Before N EWSOM, G RANT, and ANDERSON , Circuit Judges.
PER CURIAM:
Kieon Jennings appeals his 120-month sentence for intent to
distribute fentanyl, cocaine, and cocaine base, and possession of a
firearm in furtherance of a drug trafficking crime. He argues that
the special condition of supervised release prohibiting him from as-
sociating with documented gang members while on supervised re-
lease is not reasonably related to sentencing goals, not factually
supported, and violated his constitutional rights.
We normally review the imposition of special conditions of
supervised release for abuse of discretion.
United States v. Taylor,
338 F.3d 1280, 1283 (11th Cir. 2003). Under this standard of review,
we will not reverse unless we have a definite and firm conviction
that the district court committed a clear error of judgment in the
conclusion it reached.
Id. Issues not briefed on appeal are deemed
forfeited and will not be addressed absent extraordinary circum-
stances.
United States v. Campbell, 26 F.4th 860, 871–72 (11th Cir.
2022) (
en banc),
cert. denied, 143 S. Ct. 95 (2022).
It is well-settled that disputed facts are not evidence upon
which the district court can rely.
United States v. Rodriguez,
732 F.3d 1299, 1305 (11th Cir. 2013). When a defendant challenges
one of the factual bases of his sentence, the government has the
burden of establishing the disputed fact by a preponderance of the
evidence
. United States v. Little, 864 F.3d 1283, 1290 (11th Cir.
2017). This burden must be satisfied with reliable and specific
USCA11 Case: 22-11404 Document: 39-1 Date Filed: 04/07/2023 Page: 2 of 6

-- 2 of 6 --

22-11404 Opinion of the Court 3
evidence.
United States v. Martinez, 584 F.3d 1022, 1027 (11th Cir.
2009). The preponderance of the evidence standard requires only
that the trier of fact believes that the existence of a fact is more
probable than its nonexistence.
United States v. Trainor, 376 F.3d
1325, 1331 (11th Cir. 2004). In order to meet this standard, the ev-
idence submitted to prove the existence of the fact in question must
bear some indicia of reliability.
Id. In short, the trier of fact must
find the existence of a fact more probable than not in order to sat-
isfy the standard.
United States v. Dimitrovski, 782 F.3d 622, 628
(11th Cir. 2015).
A district court may order special conditions of supervised
release so long as each condition: (1) is reasonably related to the
nature and circumstances of the offense, history, and characteris-
tics of the defendant; the need for adequate deterrence; the need to
protect the public; and the need to provide the defendant with
needed training, medical care, or correctional treatment in an ef-
fective manner; (2) involves no greater deprivation of liberty than
is reasonably necessary to accomplish the goals of deterrence, pro-
tecting the public, and rehabilitation; and (3) is consistent with any
pertinent policy statements issued by the Sentencing Commission.
18 U.S.C. § 3583(d)(1)–(3);
see 18 U.S.C. § 3553(a)(1), (2)(B)–(D).
It is not necessary for a special condition to be supported by
each relevant § 3553(a) factor; rather, each factor is an independent
consideration to be weighed.
United States v. Tome, 611 F.3d
1371, 1376 (11th Cir. 2010). While a condition of supervised release
should not unduly restrict a defendant’s liberty, a condition is not
USCA11 Case: 22-11404 Document: 39-1 Date Filed: 04/07/2023 Page: 3 of 6

-- 3 of 6 --

4 Opinion of the Court 22-11404
invalid simply because it affects a probationer’s ability to exercise
constitutionally protected rights.
Id.
Here, the district court abused its discretion in overruling
Jennings’s objections and imposing the gang association special
condition of supervised release because the district court relied on
disputed facts and the undisputed record failed to support the con-
dition.
Taylor, 338 F.3d at 1283;
Rodriguez, 732 F.3d at 1305.
Jennings objected to the PSI’s suggestion that he was a “doc-
umented gang member,” pursuant to Florida Statue § 874.03, as
well as to the PSI’s inclusion of factual descriptions of alleged of-
fense conduct in Paragraphs 38–47 and 49–61. Jennings then reit-
erated these objections during his sentencing hearing. Because Jen-
nings challenged facts contained in the PSI that would be used as
the factual basis for a special condition of supervised release, the
burden shifted to the government to prove that Jennings was a
“documented gang member” by a preponderance of the evidence
using reliable and specific evidence.
Little, 864 F.3d at 1290;
Mar-
tinez, 584 F.3d at 1027. While the government initially opposed
Jennings’s objections through a written response and proffered ev-
idence showing Jennings’s gang ties, it withdrew its response and
any opposition to Jennings’s gang-related objections during the
sentencing hearing. Realizing that the government had withdrawn
its opposition to Jennings’s objections and its proffer of evidence,
the district court expressly said it was making no findings of fact
with respect to any gang affiliations.
See Sentencing Trans. Doc.
71 at 13, 14.
USCA11 Case: 22-11404 Document: 39-1 Date Filed: 04/07/2023 Page: 4 of 6

-- 4 of 6 --

22-11404 Opinion of the Court 5
Due to Jennings’s objections and the government’s failure to
prove the disputed facts, the record was devoid of any evidence
that Jennings was a designated “documented gang member” under
Florida Statute § 874.03, of any evidence of any gang membership
with the Alwoods Gang, Gangster Disciples, or any other gang, or
any affiliation or association with any gang. Because the record
was devoid of evidence showing any gang ties whatsoever, the spe-
cial condition of supervised release barring him from associating
with documented gang members while on supervised release was
not reasonably related to the nature and circumstances of the of-
fense, history and characteristics of the defendant, the need for ad-
equate deterrence, or the need to protect the public. 18 U.S.C. §
3583(d)(1). Additionally, the condition resulted in a greater depri-
vation of liberty than reasonably necessary to accomplish the goals
of deterrence, protecting the public, and rehabilitation, and it was
inconsistent with the pertinent policy statements issued by the Sen-
tencing Commission.
Id.(d)(2)–(3).
Therefore, we vacate Jennings’s sentence as to the condition
of supervised release that he challenges on appeal. Jennings’s sen-
tence apart from the special condition of supervised release at issue
on appeal is affirmed because he forfeited any arguments regarding
his sentence by not raising them on appeal.
Campbell, 26 F.4th at
USCA11 Case: 22-11404 Document: 39-1 Date Filed: 04/07/2023 Page: 5 of 6

-- 5 of 6 --

6 Opinion of the Court 22-11404
871–72. This case is remanded for further proceedings not incon-
sistent with this opinion.1
VACATED AND REMANDED.
1 Having vacated the special condition, we need not address Jennings’s consti-
tutional challenges thereto.
USCA11 Case: 22-11404 Document: 39-1 Date Filed: 04/07/2023 Page: 6 of 6

-- 6 of 6 --