United States of America v. IRA DWAYNE GIBSON, AKA James Long

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
IRA DWAYNE GIBSON, AKA James
Long,
Defendant - Appellant.
No. 15-10191
D.C. No. 4:14-cr-00217-JD-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
James Donato, District Judge, Presiding
Submitted April 12, 2016**
San Francisco, California
Before: THOMAS, Chief Judge and REINHARDT and CHRISTEN, Circuit
Judges.
Appellant Ira Dwayne Gibson challenges a suspicionless search condition of
supervised release imposed following his guilty plea for violating 18 U.S.C. §
FILED
APR 20 2016
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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922(g)(1)—Felon in Possession of Ammunition. We vacate Gibson’s sentence and
remand.
A district court is required to provide notice before imposing a condition of
supervised release when the condition “is not on the list of mandatory or
discretionary conditions in the sentencing guidelines . . . so that counsel and the
defendant will have the opportunity to address personally its appropriateness.”
United States v. Cope, 527 F.3d 944, 953 (9th Cir. 2008) (quoting United States v.
Wise, 391 F.3d 1027, 1033 (9th Cir. 2004)). The guidelines do not list a
suspicionless search condition or place the condition within a “range of
expectations.” United States v. Lopez, 258 F.3d 1053, 1056 (9th Cir. 2001); see
also Cope, 527 F.3d at 953 and n.4 (requiring notice for particular types of sex
offender treatment where sentencing guidelines identify sex offender treatment
only generally). The district court was therefore required to provide notice of the
search condition.1 Because the district court failed to do so, it abused its discretion.
We vacate the condition and remand to permit the district court to reconsider
1 Gibson’s counsel objected to the suspicionless search condition. He
did not identify lack-of-notice as a basis for the objection, but he did not have an
opportunity to do so. The government is therefore incorrect that our review should
be limited to plain error. See United States v. Mancinas-Flores, 588 F.3d 677, 686
(9th Cir. 2009) (“[T]he Rules do not require a defendant to force an objection or
exception into the record.”); cf. United States v. Watson, 582 F.3d 974, 981–82
(9th Cir. 2009) (reviewing notice challenge for plain error where counsel was
permitted to explain objection to condition of supervised release but identified only
substantive objections).

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whether to impose the condition and, if it chooses to impose the condition, to
provide adequate notice to the parties so that an objection can be made and
considered by the court. See Cope, 527 F.3d at 953; Wise, 391 F.3d at 1033.
Because we vacate Gibson’s search condition for lack of notice, we do not
review his remaining arguments. Nor do we express any view as to whether the
imposition of the challenged condition would be appropriate.
VACATE and REMAND.

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