United States of America v. CEDRIC JOSEPH TENORIO, AKA Cedric Tenorio

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CEDRIC JOSEPH TENORIO, AKA Cedric
Tenorio,
Defendant-Appellant.
No. 17-10360
D.C. No.
2:17-cr-00406-DGC-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Argued and Submitted September 6, 2018
San Francisco, California
Before: BERZON and FRIEDLAND, Circuit Judges, and CARDONE,** District
Judge.
Defendant-Appellant Cedric Tenorio challenges three conditions of his term
of supervised release from prison: that he (1) “participate in a mental health
program as directed by [his] probation officer, which may include taking
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
FILED
FEB 21 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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prescribed medication” (“Special Condition #5” or “the medication condition”), (2)
“participate in an approved program for anger management and be responsible for
paying for the costs of such treatment” (“Special Condition #10” or “the anger
management condition”), and (3) “notify [his] probation officer” within 72 hours
of any time [he] was “questioned or arrested by a law enforcement officer”
(“Standard Condition #9”). We have jurisdiction under 28 U.S.C. § 1291, and
because Tenorio did not object to the supervised release conditions at sentencing,
we review for plain error. See United States v. Wolf Child, 699 F.3d 1082, 1089
(9th Cir. 2012) (citing United States v. Johnson, 626 F.3d 1085, 1088-89 (9th Cir.
2010)).
Based on the Government’s concessions at argument, we remand for (1)
revision of the medication condition because the district court did not follow the
procedures necessary to require liberty affecting medication, and (2) revision of the
anger management condition because the court failed to consider Tenorio’s ability
to pay for treatment. Because we are unpersuaded by Tenorio’s argument that the
third condition was so vague as to constitute plain error, we affirm that condition.
I.
Tenorio argues that the medication condition was imposed in error because
the district court did not make specific procedural findings justifying its
imposition. District courts must follow heightened procedural measures before

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imposing a condition of supervised release that “implicate[s] a particularly
significant liberty interest.” United States v. Stoterau, 524 F.3d 988, 1005 (9th Cir.
2008) (citing United States v. Weber, 451 F.3d 552, 560-61 (9th Cir. 2006)). In
United States v. Williams, 356 F.3d 1045 (9th Cir. 2004), we held that because a
condition that requires a defendant to take antipsychotic medication is an
“especially grave infringement of liberty,” the district court could not impose that
condition without first making (1) “on-the-record, medically-grounded findings
that court-ordered medication is necessary to accomplish one or more of the factors
listed in [18 U.S.C.] § 3583(d)(1),” and (2) “an explicit finding on the record that
the condition ‘involves no greater deprivation of liberty than is reasonably
necessary.’” Id. at 1055, 1057 (quoting 18 U.S.C. § 3583(d)(2)). In United States
v. Cope, 527 F.3d 944 (9th Cir. 2008), we expanded on that holding, concluding
that Williams requires special findings for “any imposed treatment or medication
that implicates a particularly significant liberty interest.” Id. at 955 (emphasis
added).
In light of the district court’s failure to make Williams findings during
Tenorio’s sentencing as required by our case law, the Government here concedes
that Tenorio cannot be forced to take medications that would implicate such a
significant liberty interest. Accordingly, we remand with instructions to add to the
condition that Tenorio can refuse to take the medication without violating his

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supervised release if he has a good-faith belief that the medication will implicate a
particularly significant liberty interest.1
II.
Tenorio also challenges Special Condition #10 on inconsistency grounds.
Specifically, Tenorio argues that making his required payment for programs under
Special Conditions #1 and #5 conditional on the probation officer’s consideration
of his ability to pay while failing to consider his ability to pay for the anger
management program under Special Condition #10 is plainly unreasonable. The
Government, for its part, admits that the anger management condition cannot be
enforced as literally written—instead, the Government encourages us to assume
1 We note that the U.S Attorney’s Office in Arizona seems to have already
adjusted how it approaches the special condition, consistent with its concessions in
this case. In United States v. Ewens, the parties filed a joint notice that they were
having the district court modify a very similar release condition that also required
taking prescribed medication. The condition now reads:
You must participate in mental health treatment as determined to be
necessary by a medical professional and/or mental health professional
providing mental health treatment and follow any treatment directions
by the treatment provider. You must take medicine as prescribed by a
medical professional providing mental health treatment and approved
by the Court. If the medical professional prescribes a change in
medication which you do not want to take, you must immediately
notify the probation officer, so that the Court can promptly hold a
hearing. You must contribute to the cost of treatment in an amount to
be determined by the probation officer.
Joint Notice to the Court Re: Resolution of One Issue on Appeal at 1, United States
v. Ewens, No. 17-10509 (9th Cir. Dec. 3, 2018).

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limitations will be placed on Tenorio’s responsibility to pay based on the fact that
such limitations may be placed by a number of mechanisms, including the
probation officer’s discretion in enforcing the payment requirement, the court’s
authority under 18 U.S.C. § 3583(d)-(e) to modify payment conditions, and even
Tenorio’s ability to cover payment for the program through Medicaid. Given that
the Government has conceded that Tenorio cannot be forced to pay for treatment
he cannot afford, we remand with instructions to add to the condition that Tenorio
must pay an amount for the anger management program to be determined by the
probation officer after consideration of Tenorio’s ability to pay.
III.
Finally, Tenorio contends that Standard Condition #9’s requirement that he
report to his probation officer about any time he is “questioned” by law
enforcement is impermissibly vague. To fail on vagueness grounds, a condition of
supervised release must define the forbidden conduct “in terms so vague that it
fails to provide people of ordinary intelligence with fair notice of what is
prohibited.” United States v. Sims, 849 F.3d 1259, 1260 (9th Cir. 2017).
The district court did not plainly err in imposing the condition, so we need
not reach whether the term “questioned” renders it impermissibly vague.2 There is
2 The Government’s brief appears to argue that de novo review applies to
Tenorio’s challenge to the questioning condition because all void-for-vagueness

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no controlling authority or analogous precedent that dictates that the condition is
“clear” or “obvious” error, nor is it obvious to us that it is. See United States v.
Gnirke, 775 F.3d 1155, 1164 (9th Cir. 2015) (explaining that “[a]n error ‘cannot be
plain where there is no controlling authority on point and where the most closely
analogous precedent leads to conflicting results’” (quoting United States v.
Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011))). The out-of-circuit
authority that Tenorio relies on is not binding on this court and, in addition, is
distinguishable as an “as-applied” challenge to the relevant supervision condition.
See United States v. Maloney, 513 F.3d 350, 359 (3d. Cir. 2008) (holding that the
interaction between the probationer and a code enforcement officer concerning the
claims are reviewed de novo, even when a defendant like Tenorio has failed to
object to the condition at sentencing. But we have long reviewed void-for-
vagueness challenges to supervised release conditions for plain error when a
defendant fails to object. See United States v. Johnson, 626 F.3d 1085, 1090 (9th
Cir. 2010) (holding that the district court plainly erred when it imposed a condition
of supervised release that was not within constitutional bounds); United States v.
Rearden, 349 F.3d 608, 618-19 (9th Cir. 2003) (reviewing a defendant's vagueness
and overbreadth challenges to his supervised release conditions for plain error); see
also United States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012) (“We review
the constitutionality of a statute as a matter of law de novo . . . However,
constitutional issues not originally raised at trial are reviewed for plain error.”
(internal citations omitted)). Accordingly, we “exercise [our] discretion to apply
plain error” review despite the Government’s arguing for a standard that would be
more lenient to defendants’ challenges. United States v. Murguia-Rodriguez, 815
F.3d 566, 574 n.9 (9th Cir. 2016) (holding that because “‘waiver of waiver’
doctrine . . . is ‘like waiver generally—a discretionary doctrine,’” the court “is not
bound by any concession made by the government” and may either apply the
incorrect standard of review argued by the government if that standard is more
favorable to the defendant, or the correct standard).

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failure to display a peddler’s license was “not comparable to the contact generally
contemplated” by the condition and therefore an inappropriate basis for violation).
We therefore hold that it was not plain error for the district court to include
Standard Condition #9 as part of Tenorio’s supervised release.
VACATED AND REMANDED IN PART AND AFFIRMED IN PART.

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