USA v. Kimo Sims

Filing

FILED OPINION (J. CLIFFORD WALLACE, JEROME FARRIS and PAUL J. WATFORD) AFFIRMED. Judge: PJW Authoring. FILED AND ENTERED JUDGMENT. [10345647]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 15-10450

v.

D.C. No.
1:15-cr-00158-JMS-1

KIMO MIKE SIMS,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Hawaii
J. Michael Seabright, Chief Judge, Presiding
Argued and Submitted October 20, 2016
Honolulu, Hawaii
Filed March 7, 2017
Before: J. Clifford Wallace, Jerome Farris,
and Paul J. Watford, Circuit Judges.
Opinion by Judge Watford

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UNITED STATES V. SIMS
SUMMARY*

Criminal Law
Affirming the district court, the panel rejected the
defendant’s vagueness challenge to a special condition of
supervised release prohibiting him from possessing,
distributing, inhaling, or ingesting synthetic cannabinoids.
The panel also held that the district court acted well
within its discretion by imposing the synthetic marijuana
special condition notwithstanding that the district court also
imposed a standard condition prohibiting the defendant from
committing any federal, state, or local offense.

COUNSEL
Shanlyn A.S. Park (argued), Assistant Federal Defender;
Peter C. Wolff, Jr., Federal Public Defender; Office of the
Public Defender, Honolulu, Hawaii; for Defendant-Appellant.
Chris A. Thomas (argued), Assistant United States Attorney;
Florence T. Nakakuni, United States Attorney; United States
Attorney’s Office, Honolulu, Hawaii; for Plaintiff-Appellee.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
WATFORD, Circuit Judge:
At issue in this appeal is a vagueness challenge to a
special condition of supervised release imposed as part of
defendant Kimo Sims’ sentence. The district court imposed
the disputed condition to address Sims’ long-term use of
marijuana, which played a role in the conduct (distributing
methamphetamine) that led to his conviction in this case.
In light of Sims’ extensive history of marijuana use, the
district court prohibited him from using marijuana while he
is on supervised release. To prevent Sims from evading the
prohibition by switching to increasingly prevalent synthetic
forms of marijuana, the district court imposed the following
special condition:
The defendant shall not knowingly possess,
distribute, inhale, or ingest any synthetic
cannabinoid, defined as a substance that
mimics the effects of cannabis and applied to
plant material, often referred to as “synthetic
marijuana,” “K2,” or “Spice,” without the
prior approval of the court.
Sims objected to the condition on the ground that it failed to
give him adequate notice of exactly which substances he is
prohibited from ingesting. The district court rejected this
argument after receiving full briefing from the parties and
conducting a thorough hearing on the issue. We agree that
the synthetic marijuana condition is not unconstitutionally
vague.

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UNITED STATES V. SIMS

To prevail on his vagueness challenge, Sims must
establish that the condition defines 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. King, 608 F.3d 1122, 1128 (9th Cir. 2010). He did
not meet that burden here. The condition tells him with
specificity which substances he is prohibited from possessing,
distributing, inhaling, or ingesting—namely, synthetic
cannabinoids. True, that term is not used in everyday
conversation, but that does not render the condition
unconstitutionally vague. The first part—the modifier
“synthetic”—has a readily discernible meaning. It refers to
man-made (as opposed to naturally occurring) chemical
compounds, a concept familiar enough from the distinction
between, say, synthetic fibers like polyester and natural fibers
like cotton. As for the less familiar part—“cannabinoid”—
the district court did not leave Sims to guess at its meaning.
The court defined the term in reasonably precise language:
any chemical compound that mimics the effects of cannabis
and is applied to plant material. The court then clarified the
definition of “synthetic cannabinoid” by providing specific
examples of what the term is intended to cover: “synthetic
marijuana,” “K2,” and “Spice.” Those examples ensure that
the condition will be read to encompass only substances
similar in character to the examples given, rather than the
fanciful examples Sims has offered, such as synthetic hemp
rope.
In combination, these terms leave little ambiguity as to
what conduct is prohibited. The district court sought to
ensure that all forms of synthetic marijuana are covered by
the condition, and it provided a definition of that term
sufficiently precise to avoid constitutional vagueness
concerns.

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In response, Sims argues mainly that the condition at
issue here is indistinguishable from the condition we struck
down on vagueness grounds in United States v. Aquino, 794
F.3d 1033 (9th Cir. 2015). However, the two conditions are
nothing alike.
The condition in Aquino prohibited the defendant from
using or possessing “any substance, controlled or not
controlled, that you believe is intended to mimic the effect[s]
of any controlled substance.” Id. at 1035. The problem with
the condition in Aquino was that it swept far more broadly
than intended. It covered any substance—legal or illegal,
man-made or naturally occurring—that the defendant
believed mimicked the effects of any controlled substance.
As we observed, taken literally, the condition would have
prohibited the defendant from consuming innocuous everyday
substances like coffee or chocolate, even though that could
not possibly have been what the district court intended. Id. at
1037. But given the potential breadth of the condition’s
coverage, the defendant was forced to guess as to which
substances were actually forbidden and which were not.
We do not have anything resembling that problem here.
The district court limited the condition to one specific set of
substances—synthetic cannabinoids—and defined with
reasonable precision what was meant by that term. No
guessing on Sims’ part is required.
The only similarity between the condition in Aquino and
the condition in this case is that both use the phrase “mimics
the effects of.” But use of that phrase alone is not what
rendered the condition in Aquino impermissibly vague. The
vagueness problem arose there from a combination of two
factors: (1) the completely unbounded universe of substances

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UNITED STATES V. SIMS

potentially covered by the condition (“any substance,
controlled or not controlled”); and (2) the exceptionally broad
“mimics the effects of” clause, which covered any substance
that mimicked the effects of any controlled substance.
Together those aspects of the condition rendered it impossible
to know with any certainty which substances the condition
was really intended to cover. No such problem exists with
respect to the condition imposed here: The mimicking effects
language is tied only to the effects of marijuana, and the
substance doing the mimicking must itself be a synthetic
cannabinoid, a term that, as we have said, is defined with
sufficient precision to avoid vagueness problems.
Although unrelated to any concern with vagueness, Sims
also argues that the synthetic marijuana condition is
redundant, and therefore in his view unnecessary, because the
district court also imposed a standard condition prohibiting
him from committing any federal, state, or local offense.
Since many forms of synthetic marijuana are illegal under
federal or state law (or both), Sims contends that the district
court should simply have relied on the standard condition to
regulate his marijuana use. While the district court certainly
could have done that, the court acted well within its discretion
by imposing a special condition specifically targeting the use
of synthetic marijuana. As the district court pointed out, in
certain circumstances it is desirable to impose special
conditions tailored to the particular obstacles the court
anticipates the defendant may encounter upon release from
prison, even if that conduct might also be covered by a more
general standard condition. Imposing a special condition
tailored to the defendant’s individual circumstances allows
the court and the Probation Office to focus the defendant’s
attention on conduct that will not be tolerated—to have, as
the court put it, “a clear discussion with them regarding what

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is expected of them in a way they can understand it.” So long
as the condition imposed falls within the constraints imposed
by Congress and is not impermissibly vague, we owe
substantial deference to the district court’s judgment about
which conditions are needed to ensure successful supervision
of the defendant. United States v. LaCoste, 821 F.3d 1187,
1190–91 (9th Cir. 2016).
The effort the district court invested in crafting a
condition of supervised release focused on prohibiting Sims’
marijuana use—whether in natural or synthetic form—was
commendable, given Sims’ past history with the drug and the
role it played in his commission of the underlying offense.
The language of the condition is sufficiently precise to avoid
the vagueness concerns we identified in Aquino, and the
district court did not abuse its discretion by imposing the
condition simply because it prohibits conduct also covered by
one of the standard conditions of supervised release.
AFFIRMED.