United States v. 2020-08-21 | 19-30161 | USA V. RYAN CATE | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RYAN LARRY CATE,
Defendant-Appellant.
No. 19-30161
D.C. No.
2:14 cr-0005 RMP
OPINION
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Submitted May 5, 2020
*
Seattle, Washington
Filed August 21, 2020
Before: A. Wallace Tashima, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Tashima
*
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).

UNITED STATES V. CATE2
SUMMARY
**
Criminal Law
Affirming the district court’s judgment and sentence on
revocation of supervised release, the panel held that the
validity of an underlying conviction cannot be challenged in
a supervised release revocation proceeding; the underlying
conviction can only be collaterally attacked in a proceeding
under 28 U.S.C. § 2255.
The panel held that the district court therefore properly
denied the defendant’s motion to terminate his supervised
release on the ground that a change in the law meant that the
state offense underlying his felon-in-possession-of-a-firearm
conviction was no longer a felony. The panel also held that
the district court imposed a reasonable sentence, adequately
considering the defendant’s arguments and the requisite
statutory factors.
COUNSEL
Matthew Campbell, Federal Defenders of Eastern
Washington & Idaho, Spokane, Washington, for Defendant-
Appellant.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

UNITED STATES V. CATE3
William D. Hyslop, United States Attorney; Russell E.
Smoot, Assistant United States Attorney; United States
Attorney’s Office, Spokane, Washington, for Plaintiff-
Appellee.
OPINION
TASHIMA, Circuit Judge:
Ryan Cate, convicted of being a felon in possession of a
firearm in violation of 18 U.S.C. § 922(g)(1), was charged
with violating the conditions of his supervised release. He
moved to terminate supervised release on the ground that a
change in the law meant that his underlying state offense was
no longer a felony. The district court denied the motion,
found that Cate had violated his supervised release, and
imposed a fifteen-month term of imprisonment.
For the reasons set forth below, we agree with the district
court that the validity of an underlying conviction cannot be
challenged in a supervised release revocation proceeding.
We further conclude that the sentence imposed by the district
court was reasonable and therefore affirm the judgment.
BACKGROUND
Cate pled guilty in 2010 to third degree assault, in
violation of Revised Code of Washington (“RCW”)
§ 9A.36.031. The statutory maximum term of confinement
for Cate’s assault conviction was five years. RCW
§ 9A.20.021(1)(c). However,

UNITED STATES V. CATE4
In addition to the statutory maximum
provided for each offense, Washington law
prescribes a “standard sentence range” based
on the offender’s “offender score” and the
“seriousness level” of the offense . . . . The
sentencing court may depart from the standard
sentencing range only if, after consideration
of certain statutorily enumerated
considerations, the court finds “that there are
substantial and compelling reasons justifying
an exceptional sentence.”
United States v. McAdory, 935 F.3d 838, 840–41 (9th Cir.
2019) (quoting RCW §§ 9.94A.505(2)(a)(i), 9.94A.510,
9.94A.535). Cate’s standard sentence range, based on an
offender score of zero and a seriousness level of III, was one
to three months. Because Cate qualified as a first-time
offender under RCW §§ 9.94A.030 and 9.94A.650, the court
waived the standard sentence and imposed zero days of
confinement.
In September 2014, Cate was convicted of being a felon
in possession of a firearm under § 922(g), which requires a
prior conviction of “a crime punishable by imprisonment for
a term exceeding one year.” 18 U.S.C. § 922(g)(1). The
underlying felony conviction was his state assault conviction.
He was sentenced to a term of eight months’ imprisonment
and three years of supervised release.
After serving his term of imprisonment, Cate began
serving his term of supervised release on May 1, 2015. In
July 2017, Cate was charged with violating two conditions of
his supervision: (1) that he not commit another crime (by

UNITED STATES V. CATE5
being arrested for vehicular manslaughter on July 16, 2017),
and (2) that he abstain from alcohol.
In January 2019, while the supervised release violation
proceeding was still pending,
1
we addressed whether a
Washington conviction was a felony for purposes of an
enhancement under the United States Sentencing Guidelines.
We held that the term “punishable by” referred to the
sentence to which a defendant is actually exposed under
Washington’s sentencing scheme, rather than the general
statutory maximum term. United States v. Valencia-
Mendoza, 912 F.3d 1215, 1216, 1223–24 (9th Cir. 2019).
Relying on Valencia-Mendoza, Cate filed a motion to
terminate his supervised release, arguing that he was innocent
of the felon-in-possession charge because the actual
maximum term of imprisonment for his underlying offense
was only three months, which meant that the state offense
was not a felony.
The district court denied Cate’s motion, explaining that,
although the court was bound by Valencia-Mendoza, the
court could not simply declare Cate factually innocent.
Instead, the court reasoned that the proper procedure would
be for Cate to collaterally attack the validity of his sentence
under 28 U.S.C. § 2255. Finding that there were no equities
weighing in favor of terminating Cate’s supervised release
and that Cate had committed the two violations alleged in the
petition, the district court imposed a sentence of fifteen
months’ imprisonment and twenty-one months of supervised
1
Cate made his first appearance on the supervised release violation
petition on March 28, 2019. The delay in adjudicating the petition
apparently was caused by pending charges in state court.

UNITED STATES V. CATE6
release. Cate timely appealed from the judgment entered July
12, 2019.
STANDARD OF REVIEW
The district court’s decision whether to grant a motion to
terminate supervised release is reviewed for abuse of
discretion. United States v. Emmett, 749 F.3d 817, 819 (9th
Cir. 2014). A sentence imposed on revocation of supervised
release is reviewed for reasonableness. United States v.
Campbell, 937 F.3d 1254, 1256 (9th Cir. 2019). “When
reviewing a sentence for reasonableness, we ‘merely ask[]
whether the trial court abused its discretion.’” United States
v. Apodaca, 641 F.3d 1077, 1079 (9th Cir. 2011) (quoting
Rita v. United States, 551 U.S. 338, 351 (2007)). This court
“conduct[s] a two-step analysis when reviewing the
reasonableness of a sentence: ‘we first consider whether the
district court committed significant procedural error, then we
consider the substantive reasonableness of the sentence.’” Id.
at 1080–81 (quoting United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc)).
DISCUSSION
I.Denial of Motion to Terminate Supervised Release
At the time of Cate’s felon-in-possession conviction, in
order to determine whether an offense was “punishable by
imprisonment for a term exceeding one year,” as required by
§ 922(g)(1), the maximum term was “‘the statutory maximum
sentence for the offense, not the maximum sentence available
in the particular case under the sentencing guidelines.’”
Valencia-Mendoza, 912 F.3d at 1219 (quoting United States
v. Murillo, 422 F.3d 1152, 1154 (9th Cir. 2005)). However,

UNITED STATES V. CATE7
in light of more recent Supreme Court precedent requiring
courts to consider the crime “as actually prosecuted and
adjudicated,” Valencia-Mendoza held that a conviction under
Washington law carrying “a general statutory maximum term
of imprisonment of five years,” but an “actual maximum
term” of only six months due to Washington’s mandatory
sentencing ranges, was no longer a felony for purposes of a
sentencing enhancement. Id. at 1216, 1224.
In McAdory, we applied Valencia-Mendoza to hold that
a defendant’s convictions under Washington law were not
felonies for purposes of § 922(g)(1). McAdory, 935 F.3d
at 840. Similar to Cate, the statutory maxima for the
defendant’s offenses of conviction were five years and ten
years, but his actual sentencing ranges were less than a year.
Id. at 841. Cate thus relies on McAdory to argue that his
Washington offense was not a felony for purposes of
§ 922(g)(1) because the sentence to which he actually was
exposed was less than a year. Although this may be correct,
the supervised release hearing was not the proper proceeding
in which to challenge his underlying federal conviction.
In United States v. Simmons, 812 F.2d 561 (9th Cir.
1987), the defendant challenged the revocation of his
probation, as well as the guilty plea that led to probation.
Explaining that the underlying conviction “may be
collaterally attacked only in a separate proceeding under
28 U.S.C. § 2255, and a court should consider the petition for
probation revocation as if the underlying conviction was
unquestioned,” we held that “an appeal from a probation
revocation is not the proper avenue for a collateral attack on
the underlying conviction.” Id. at 563. Although Simmons
involved a probation revocation proceeding, we conclude that
Simmons’ rationale should control; therefore, a supervised

UNITED STATES V. CATE8
release revocation proceeding similarly is not a proper forum
in which to challenge an underlying conviction. Cf. United
States v. Castro-Verdugo, 750 F.3d 1065, 1068–70 (9th Cir.
2014) (holding that a challenge to the underlying conviction
in a probation revocation hearing should be brought under
28 U.S.C. § 2255, relying in part on a supervised release case
because 18 U.S.C. § 3583 is “the analogous statute governing
parole revocation proceedings”).
The decision whether to terminate supervised release is
governed by 18 U.S.C. § 3583(e), which provides that the
court may modify the conditions of or revoke supervised
release “after considering the factors set forth in [18 U.S.C.]
section 3553(a)(1), (a)(2)(B), (a)(2)(C), (a)(2)(D), (a)(4),
(a)(5), (a)(6), and (a)(7).” The factors “include the nature and
circumstances of the offense, the need for deterrence, the
need to protect the public, the need to provide defendant with
training or medical care, and the relevant provisions of the
Sentencing Guidelines.” United States v. Gross, 307 F.3d
1043, 1044 (9th Cir. 2002). The validity of the underlying
conviction is not one of the factors to be considered.
We confronted a similar issue in Gross, where the
defendant moved for modification of the terms of his
supervised release on the ground that the imposition of the
conditions was unlawful. There, we agreed with the district
court’s conclusion that “under 18 U.S.C. § 3583(e)(2), it had
authority to modify these conditions upon consideration of
certain statutorily enumerated factors, but not the factor of
illegality.” Id. at 1044. We explained:
Congress, by enacting the Sentencing Reform
Act of 1984, limited the manner in which a
defendant may challenge the legality of a

UNITED STATES V. CATE9
supervised release condition to: (1) direct
appeal, (2) § 2255 habeas corpus relief, and
(3) within seven days of the district court’s
decision, Rule 35(c) motion. It would
frustrate Congress’s intent if this court were to
interpret § 3583(e)(2) to authorize a district
court to modify or rescind an allegedly illegal
condition.
Id.
Just as § 3583(e) does not authorize a district court to
modify or rescind an allegedly illegal condition, it does not
authorize a district court to vacate an allegedly illegal
conviction. Instead, the underlying conviction must be
collaterally attacked in a proceeding under § 2255, not in a
supervised release revocation proceeding. Cf. Simmons,
812 F.2d at 563. In so holding, we join every other circuit to
have addressed the question. See, e.g., United States v.
Faber, 950 F.3d 356, 359 (6th Cir. 2020) (“Section
3583(e)(2) allows district courts to adjust supervised release
conditions to account for new or unforeseen circumstances.
It is not, however, a duplicate path for postconviction
review.”); United States v. Sanchez, 891 F.3d 535, 538 (4th
Cir. 2018) (“A supervised release revocation hearing is not a
proper forum for testing the validity of an underlying
sentence or conviction.”); United States v. Miller, 557 F.3d
910, 913 (8th Cir. 2009) (“A defendant may challenge the
validity of his underlying conviction and sentence through a
direct appeal or a habeas corpus proceeding, not through a
collateral attack in a supervised-release revocation
proceeding.”); United States v. Warren, 335 F.3d 76, 78 (2d
Cir. 2003) (“We join other circuits in holding that the validity
of an underlying conviction or sentence may not be

UNITED STATES V. CATE10
collaterally attacked in a supervised release revocation
proceeding and may be challenged only on direct appeal or
through a habeas corpus proceeding.”); United States v.
Hofierka, 83 F.3d 357, 363 (11th Cir. 1996) (per curiam)
(rejecting the defendant’s argument that his underlying
conviction was unconstitutional because “a supervised release
revocation proceeding is not the proper forum in which to
attack the conviction giving rise to the revocation”).
2
Pursuant to the reasoning of Simmons and Gross, the
district court properly denied Cate’s motion to terminate
supervised release on the ground that a supervised release
revocation proceeding was not the proper proceeding in
which to challenge his underlying conviction.
II.Reasonableness of Sentence
Cate contends that the district court committed procedural
error by failing to respond to his argument that he was
innocent of the underlying federal conviction. He further
contends that the sentence was substantively unreasonable
because the district court failed to consider the factors set
forth in 18 U.S.C. § 3553. Contrary to Cate’s arguments, the
2
Cate relies on an unpublished decision from the Fourth Circuit,
United States v. Perry, 450 F. App’x 313 (4th Cir. 2011), to argue that
termination of supervised release was an appropriate remedy here, but
Perry is distinguishable. Perry did not involve a hearing on a motion to
terminate supervised release, but a direct appeal of a conviction. The
court previously had affirmed the defendant’s conviction, but after the
Supreme Court’s decision in Carachuri-Rosendo v. Holder, 560 U.S. 563
(2010), the court granted his petition for rehearing and reversed his
conviction. Id. at 314. Perry therefore does not support the argument that
a supervised release revocation hearing is a proper proceeding in which to
challenge the validity of the underlying conviction.

UNITED STATES V. CATE11
district court did respond to his argument and carefully
considered the requisite factors.
The district court addressed Cate’s argument that he was
innocent of the underlying federal conviction when it stated
that, although it was bound by Valencia-Mendoza, the court
had researched whether this was the proper procedure to
attack the validity of the underlying conviction and concluded
that it was not. The court explained that, instead, § 2255 was
the proper vehicle to collaterally attack his conviction.
The court also considered the requisite factors and
explained the reason for the sentence. The court considered
the nature and circumstances and history and characteristics
of the defendant, 18 U.S.C. § 3553(a)(1), discussing the
tragedy to the victim’s family and Cate’s history of violence
and alcohol abuse. The court cited the need for the sentence
to protect the public from further crimes of the defendant as
“the most important thing,” stating that Cate was a danger to
his family and the community. Id. § 3553(a)(2)(C). The
court further considered the need to avoid unwarranted
sentencing disparities among defendants with similar
characteristics. Id. § 3553(a)(6). The sentencing court need
only “‘set forth enough to satisfy the appellate court that [the
trial court judge] considered the parties’ arguments and has
a reasoned basis for exercising his own legal decisionmaking
authority.’ . . . ‘[N]o lengthy explanation is necessary if the
record makes it clear that the sentencing judge considered the
evidence and arguments.’” Apodaca, 641 F.3d at 1081 (first
brackets in original) (quoting, first, Rita, 551 U.S. at 356,
then United States v. Daniels, 541 F.3d 915, 922 (9th Cir.
2008)). The sentence imposed by the district court was
reasonable.

UNITED STATES V. CATE12
CONCLUSION
The supervised release revocation proceeding was not the
proper proceeding in which to challenge Cate’s underlying
conviction. The district court therefore properly denied
Cate’s motion to terminate supervised release. The court
adequately considered Cate’s arguments and the requisite
statutory factors in imposing his sentence. The judgment and
sentence on revocation of supervised release are
AFFIRMED.