United States of America v. Kenneth W. Medenbach

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff–Appellee,
v.
KENNETH W. MEDENBACH,
Defendant–Appellant.
No. 16-30189
D.C. No.
1:15-CR-00407-MC-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted on June 8, 2018**
Portland, Oregon
Before: GRABER and M. SMITH, Circuit Judges, and KORMAN,*** District
Judge.
Kenneth Medenbach was convicted of unlawful camping and occupancy
arising out of his continued efforts to reclaim federal lands by “adverse possession”
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED
JUL 5 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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on behalf of the people of Oregon. In August 2016, he was sentenced to five years
of probation, and the district judge imposed both standard and special conditions,
including a custodial sentence of six months. But the judge made a finding of time
served, because Medenbach had been in custody after his arrest—during pre-trial
release—for once again illegally camping on federal land. The judge also ordered
$2,506.45 in restitution for costs associated with removing Medenbach’s illegal
cabin. Medenbach did not object. He now appeals, challenging the six-month
custodial term, the restitution order, and the jurisdiction of the federal courts.
When a defendant does not object in the district court, we review the
imposition of probation conditions for plain error. United States v. Forbes, 172 F.3d
675, 676 (9th Cir. 1999). We review de novo the legal issues of whether the court
had authority to order restitution, United States v. Lazarenko, 624 F.3d 1247, 1249
(9th Cir. 2010), and whether, as Medenbach argues, we lack the authority to preside
over the case at all, see United States v. Kuchinski, 469 F.3d 853, 857 (9th Cir. 2006).
1. District courts have “broad discretion” to fashion probation conditions.
United States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988). However, 18 U.S.C. §
3561(a)(3) prohibits a term of probation when “the defendant is sentenced at the
same time to a term of imprisonment for the same or a different offense that is not a
petty offense.” It is therefore plain error for a judgment to impose, as a condition of
probation, a continuously served custodial sentence. Forbes, 172 F.3d at 676.

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But that’s not really what happened here. The judge limited the custodial
sentence to time served. Medenbach has therefore failed to bear his burden of
proving how this affected his “substantial rights” when it resulted in no prison time.
United States v. Jimenez, 258 F.3d 1120, 1126 (9th Cir. 2001). Thus the district court
did not plainly err.
2. A district court has statutory authority to impose restitution as a condition
of probation. 18 U.S.C. § 3563(b)(2). Medenbach implies that restitution was
imposed for “costs relating to the investigation and prosecution” of his offenses, but
the record demonstrates that restitution was properly imposed “for the cabin removal
and cleanup costs” associated with Medenbach’s occupation of federal land.
Medenbach also asks us, without much reasoning, to overrule our decision in United
States v. Miguel, 49 F.3d 505, 512 (9th Cir. 1995), in which we held that 18 U.S.C.
§ 3663 provides statutory authority to impose restitution, as an additional penalty, in
misdemeanor cases. We do not have the authority to do so, because we may only
“overrule prior circuit authority without taking the case en banc when an
‘intervening Supreme Court decision undermines an existing precedent of the Ninth
Circuit, and both cases are closely on point.’” Miller v. Gammie, 335 F.3d 889, 899
(9th Cir. 2003) (en banc) (quoting Galbraith v. County of Santa Clara, 307 F.3d
1119, 1123 (9th Cir. 2002)).
3. We have already rejected Medenbach’s challenges to the exercise of federal

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jurisdiction. United States v. Medenbach, 116 F.3d 487 (Table) (9th Cir. 1997). He
is therefore precluded from raising them again here. See B & B Hardware, Inc. v.
Hargis Indus., Inc., 135 S. Ct. 1293, 1298 (2015).
AFFIRMED.

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