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United States v. Sims

United States Court of Appeals, Ninth Circuit

March 7, 2017

United States of America, Plaintiff-Appellee,
v.
Kimo Mike Sims, Defendant-Appellant.

          Argued and Submitted October 20, 2016 Honolulu, Hawaii

         Appeal from the United States District Court No. 1:15-cr-00158-JMS-1 for the District of Hawaii J. Michael Seabright, Chief Judge, Presiding.

          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.

          Before: J. Clifford Wallace, Jerome Farris, and Paul J. Watford, Circuit Judges.

         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.

          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 ...


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