United States of America v. KENNETH HENRY McDONALD, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
KENNETH HENRY McDONALD, Jr.,
Defendant - Appellant.
No. 12-10412
D.C. No. 1:07-cr-00049-AWI
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted April 16, 2013**
Before: CANBY, IKUTA, and WATFORD, Circuit Judges.
Kenneth Henry McDonald, Jr. appeals from the district court’s revocation of
supervised release and the nine-month sentence imposed upon revocation. We
have jurisdiction under 28 U.S.C. § 1291, and we vacate and remand.
FILED
APR 22 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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McDonald contends, and the government agrees, that the district court
improperly delegated judicial authority by construing Standard Condition 3 to
permit the probation officer to prohibit McDonald from possessing certain types of
cell phones and images of minors. A district court may only “delegate to the
probation officer the details of where and when the condition will be satisfied.”
United States v. Stephens, 424 F.3d 876, 880 (9th Cir. 2005). Here, construing
Standard Condition 3 to allow the probation officer to impose new substantive
conditions was an improper delegation regarding the “primary decision” of what
supervised release conditions should be imposed. See id. at 882. Accordingly, we
vacate the judgment and remand for resentencing solely on the basis of
McDonald’s violation of Special Condition 8.
VACATED and REMANDED.
12-10412 2

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