UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10451 Plaintiff-Appellee, D.C. No. v. 5:18-cr-00567- LHK-1 JONATHAN WELLS, Defendant-Appellant. OPINION

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding

Argued and Submitted October 18, 2021 San Francisco, California

Filed March 22, 2022

Before: J. Clifford Wallace, Ronald M. Gould, and Carlos T. Bea, Circuit Judges.

Opinion by Judge Wallace; Dissent by Judge Bea 2 UNITED STATES V. WELLS

SUMMARY *

Criminal Law

The panel dismissed in part an appeal from the district court’s judgment and order imposing sentence and conditions of supervised release, vacated the judgment in part, and remanded with instructions to the district court to clarify a special condition of supervised release to avoid a constitutional violation.

The panel wrote that because the language of the waiver of the right to appeal in the plea agreement is unambiguous, and the defendant knowingly and voluntarily waived the right to appeal, the panel was obligated to enforce the waiver and would not exercise the jurisdiction to review the merits of the appeal unless any exceptions to the appeal waiver apply.

Explaining that a waiver of the right to appeal does not bar a defendant from challenging an “illegal sentence,” which has a very limited and precise meaning in this context, the panel observed that the defendant does not have any statutory basis for challenging the terms of his sentence as illegal. The panel declined to extend the meaning of an “illegal sentence” to encompass sentences that potentially violate 18 U.S.C. § 3583(d), which governs imposition of conditions of supervised release, and 18 U.S.C. § 3553, which sets forth factors to be considered in imposing a sentence.

* 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. WELLS 3

In light of potential ambiguity in this court’s caselaw regarding when an appeal-waiver exception based on constitutional challenges applies or on the scope of the exception, the panel attempted to clarify. Guided by United States v. Bibler, 495 F.3d 621 (9th Cir. 2007), and its progeny, the panel concluded that a waiver of the right to appeal a sentence does not apply if (1) the defendant raises a challenge that the sentence violates the Constitution; (2) the constitutional claim directly challenges the sentence itself; and (3) the constitutional challenge is not based on any underlying constitutional right that was expressly and specifically waived by the appeal waiver as part of a valid plea agreement. Following that precedent, the panel wrote that it must address the defendant’s constitutional claims that directly challenge the terms of his supervised release, where the defendant waived his general right to appeal “any aspect” of his sentence but did not expressly waive any specific constitutional right. Except for the defendant’s constitutional challenges to the terms of his supervised release, the panel enforced the waiver and dismissed the appeal.

The panel addressed on the merits the defendant’s three constitutional challenges: (1) Special Condition No. 3 (computer ban) is unconstitutionally vague; (2) Special Condition No. 5 (internet ban) violates his First Amendment rights; and (3) both conditions are an unconstitutional delegation of authority because the conditions contain language that specify that the restrictio