United States of America v. DARRA DANIELLE KITCHEN, AKA Dime, AKA Twitty

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DARRA DANIELLE KITCHEN, AKA
Dime, AKA Twitty,
Defendant-Appellant.
No. 18-50330
D.C. No.
2:18-cr-00163-MWF-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted July 10, 2019
Pasadena, California
Before: M. SMITH and FRIEDLAND, Circuit Judges, and BASTIAN,** District
Judge.
Following Defendant Darra Kitchen’s conviction for possession of stolen
mail, in violation of 18 U.S.C. § 1708, the district court sentenced her to 110 days’
imprisonment, followed by three months of supervised release. Kitchen appeals
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Stanley A. Bastian, United States District Judge for
the Eastern District of Washington, sitting by designation.
FILED
AUG 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the district court’s imposition of a special condition of supervised release requiring
Kitchen to submit her “computers[,] . . . cell phones, other electronic
communications or data storage devices . . . to a search . . . . upon reasonable
suspicion that [Kitchen] has violated a condition of [her] supervision and that the
areas to be searched contain evidence of this violation” (the Electronic Search
Condition). We have jurisdiction pursuant to 28 U.S.C. § 1291. We vacate the
Electronic Search Condition and remand to the district court.
Contrary to the government’s argument, Kitchen’s appeal is not moot.
Although the district court issued a new judgment after Kitchen violated the
conditions of supervised release, that judgment imposed the same conditions of
supervised release, including the Electronic Search Condition. Accordingly,
although Kitchen’s appeal challenges the district court’s original judgment, “we
construe [her] appeal also to challenge the district court's imposition of special
conditions of supervised release that parallel the original conditions of probation.”
United States v. Wynn, 553 F.3d 1114, 1119 (8th Cir. 2009). Because Kitchen is
still subject to the Electronic Search Condition, she “continue[s] to have a
‘personal stake in the outcome’ of the lawsuit,” and her appeal remains live. Lewis
v. Cont’l Bank Corp., 494 U.S. 472, 478 (1990) (quoting Los Angeles v. Lyons, 461
U.S. 95, 101 (1983)).
We conclude that the district court plainly erred by “fail[ing] adequately to

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explain” why it imposed the Electronic Search Condition. United States v. Wolf
Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (quoting United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008) (en banc)). The court explained that it was imposing
the condition because it agreed “with the Government and the probation office []
that in light of the theft, [the Electronic Search Condition] does seem to be an
appropriate condition.” That explanation fails to “permit meaningful appellate
review,” Carty, 520 F.3d at 992, because it does not clarify why the Electronic
Search Condition was appropriate considering Kitchen’s crime. Contrary to the
government’s argument, we do not believe an “adequate explanation” for the
Electronic Search Condition “may [] be inferred from the PSR or the record as a
whole.” Id. Kitchen’s crime, possession of stolen mail, did not involve the use of
an electronic device, and it is not obvious in the absence of explanation why the
district court believed the Electronic Search Condition is reasonably related to the
goal of deterrence, protection of the public, or Kitchen’s rehabilitation, as required
by 18 U.S.C. § 3553(a). See United States v. T.M., 330 F.3d 1235, 1240 (9th Cir.
2003).
The district court also failed to explain why it rejected Kitchen’s “specific,
nonfrivolous argument [against the Electronic Search Condition] tethered to a
relevant § 3553(a) factor.” Carty, 520 F.3d at 992. Before the court imposed the
condition, Kitchen argued that, because “[t]here is no indication that [Kitchen] did

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in this case or has ever used electronic means to steal mail or personally
identifiable information[, . . . .] intrusion into her and search into her personal
property . . . is greater than necessary to fulfill the requirements for sentencing.”
The court’s brief explanation, which did not respond to Kitchen’s contention, does
not “satisfy [us] that [it] considered the parties’ arguments and ha[d] a reasoned
basis for exercising [its] own legal decisionmaking authority.” Rita v. United
States, 551 U.S. 338, 356 (2007).1
VACATED and REMANDED.
1 Because we hold that the district court procedurally erred by failing to
adequately explain why it imposed the Electronic Search Condition, we do not
address Kitchen’s arguments that the district court abused its discretion by
imposing the condition, that the condition is unconstitutionally vague and
overbroad, or that the condition impermissibly delegates authority to the United
States Probation Office.

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United States v. Kitchen, No. 18-50330
FRIEDLAND, Circuit Judge, dissenting:
I believe that Kitchen’s appeal is moot. In my view, her appeal of the
district court’s imposition of the Electronic Search Condition as a condition of her
term of supervised release was mooted by the district court’s subsequent
revocation of that term. Although the district court subsequently imposed an
identical condition, Kitchen did not file a notice of appeal of that judgment and
therefore is not entitled to appellate review of that judgment. See Manrique v.
United States, 137 S. Ct. 1266, 1271-72 (2017) (“To secure appellate review of a
judgment or order, a party must file a notice of appeal from that judgment or
order.” (emphasis added)). I do not think the Eighth Circuit’s approach in United
States v. Wynn, 553 F.3d 1114 (8th Cir. 2009), resolves this problem, as the
defendant in Wynn did file a notice of appeal of the later judgment re-imposing the
supervision condition. Id. at 1116. I therefore believe we lack jurisdiction and
would dismiss Kitchen’s appeal without reaching the merits.
For these reasons, I respectfully dissent.
FILED
AUG 30 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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