UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-30213

Plaintiff-Appellee, D.C. No.3:21-cr- v. 00031-SI-1 ADAM LLOYD LIVAR, OPINION Defendant-Appellant.

Appeal from the United States District Court for the District of Oregon Michael H. Simon, District Judge, Presiding

Argued and Submitted April 18, 2023 San Francisco, California

Filed July 15, 2024

Before: Lawrence VanDyke and Gabriel P. Sanchez, Circuit Judges, and Kathryn H. Vratil,* District Judge.

Per Curiam Opinion; Concurrence by Judge Vratil; Concurrence and Dissent by Judge VanDyke; Concurrence and Dissent by Judge Sanchez * The Honorable Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. 2 USA V. LIVAR

SUMMARY**

Criminal Law

The panel vacated Adam Lloyd Livar’s sentence and remanded for resentencing in a case in which Livar pled guilty to failing to register as a sex offender in violation of 18 U.S.C. § 2250(a). In Livar's plea agreement, the government reserved the right to change its middle-of-the-guidelines-range sentencing recommendation if Livar committed any new criminal offense, obstructed or attempted to obstruct justice, or acted inconsistently with acceptance of responsibility between entering the plea and sentencing. In a per curiam opinion, the panel addressed whether the appeal became moot based on Livar's release from the Federal Bureau of Prisons on June 6, 2023, to begin serving his five-year term of supervised release. The government contended that the case is moot because the district court sentenced Livar to the minimum supervised release term allowed under 18 U.S.C. § 3583(k). The panel held that because the district court has authority to modify or terminate Livar's current supervised release obligations under 18 U.S.C. § 3583(e) following a successful appeal, the appeal is not moot. The per curiam opinion summarized the holdings that resulted from the judges' separate opinions.

** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. LIVAR 3

First, all three panel members agreed that when the government seeks to be relieved of its obligations under the plea agreement because, in its view, the defendant breached the plea agreement or failed to satisfy a condition precedent, the district court must hold an evidentiary hearing to resolve any such factual disputes. Because the district court declined to adjudicate whether Livar committed a new crime when he made profanity-laced threatening statements during a phone call he placed from prison to a child protective services case worker, and therefore never made the required determination in this case, the panel unanimously concluded that Livar's sentence should be vacated. Second, a majority of the panel (Judges VanDyke and Vratil) concluded due process does not require the government to seek a judicial determination of a defendant’s failure to comply with the plea agreement before it submits a sentencing recommendation that differs from the terms of the agreement. The government thus does not breach its obligations under an agreement simply by submitting a different sentencing recommendation without a prior judicial determination of whether the defendant failed to comply with the plea agreement, nor is it required to first seek a preliminary determination as to whether its recommendation complies with the agreement. There must be a judicial determinatio