NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

LESLIE HOOD, 

Defendant-Appellant.

No. 22-10207 

D.C. No. 

1:17-cr-00040-DAD-BAM-2 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Submitted January 8, 2024**

San Francisco, California

Before: SILER,*** TASHIMA, and BRESS, Circuit Judges.

Shortly before beginning voir dire in his criminal trial for possession with 

intent to distribute methamphetamine, Defendant Leslie Hood, proceeding pro se, 

* 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 Eugene E. Siler, United States Circuit Judge for the 

U.S. Court of Appeals for the Sixth Circuit, sitting by designation.

FILED

FEB 22 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-10207 

reached an oral plea agreement with the government. As part of that agreement, he 

agreed to “waiv[e] all appellate and collateral attack rights.” The court sentenced 

him to 147 months of imprisonment and a five-year period of supervised release, 

with the supervised release conditions that he be gainfully employed and engage in 

community service or employment at least thirty hours per week. He now challenges 

the work-related conditions of his supervised release, arguing that his appellate 

waiver did not foreclose a challenge to those conditions, and that they violate the 

Eighth Amendment. Finding no constitutional violation, we affirm his sentence. 

The question whether Hood has waived his appellate rights is reviewed de 

novo. United States v. Dailey, 941 F.3d 1183, 1188 (9th Cir. 2019). Ordinarily, 

allegations that a supervised release condition violates the Constitution are reviewed 

de novo, but when the issue is not raised before the trial court, as is the case here,

review is merely for plain error. See United States v. Nishida, 53 F.4th 1144, 1150 

(9th Cir. 2022). Although Hood appears to have validly waived his appellate rights 

in his plea agreement, we need not reach that issue because an appellate waiver is 

inapplicable if a sentence is illegal, as Hood is alleging here. See, e.g., United States 

v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007), as amended; see also Nishida, 53 F.4th 

at 1149 (“When a defendant with an otherwise valid appeal waiver challenges the 

legality of [his] sentence, the claim as to waiver rises and falls with the claim on the 

merits.” (quoting United States v. Dailey, 941 F.3d 1183, 1188 (9th Cir. 2019))). The 
3 22-10207 

parties also appear to agree that Hood’s waiver, even if valid, would not cover the 

merits of this appeal.

The Eighth Amendment prohibits the imposition of “cruel and unusual 

punishments.” U.S. Const. amend VIII. Two categories of punishments fall within 

the Amendment’s ambit: (1) those “considered cruel and unusual at the time that the 

Bill of Rights was adopted,” and (2) those that offend our “evolving standards of 

decency.” United States v. Gementera, 379 F.3d 596, 608 (9th Cir. 2004) (citations 

omitted). Analysis of whether a punishment offends modern decency standards 

looks broadly at “American society as a whole” and whether such punishments are 

unusual generally and in the context of “the reality of the modern prison.” Id. at 

608–10. The Amendment’s core concern is “the dignity of man.” Id. at 608 

(quotations omitted). 

As part of his sentence, the district court ordered Hood to comply with the 

standard conditions of supervision and special conditions recommended by the 

Probation Office. Two of those conditions impose a work or community-service 

requirement. The first states that “[y]ou must work full time (at least 30 hours per 

week) at a lawful type of employment, unless the probation officer excuses you from 

doing so.” The second requires that Hood “be employed and/or complete 

community service for a combination of 30 hours per week or participate in a 

previously approved educational or vocational program by the probation officer.” 
4 22-10207 

Hood argues that “[r]equiring a 64 year-old man in ill health to work full time despite 

the pain and pronounced physical discomfort it will cause him is an unnecessary and 

wanton infliction of pain and it is an uncivilized blow to Mr. Hood’s dignity.” His

health issues include “gastroesophageal reflux disease, ulcerative colitis and 

inflammatory bowel disease.” He was hospitalized once during the four years his 

case was pending before the district court and caught COVID-19 five different times. 

He still suffers fatigue, headaches, and bone aches, apparently as a “lingering 

effect[]” of COVID-19. He argues that he “simply does not have the physical ability 

to work.” 

As the United States points out, the work condition is not unconstitutional 

because it is commonly imposed, serves a legitimate penological purpose, and does 

not violate basic standards of decency. The work requirements are specifically 

authorized by statute and their imposition is left to the discretion of the district court. 

See 18 U.S.C. § 3563(b); United States v. Bahe, 201 F.3d 1124, 1135 (9th Cir. 2000). 

And further, the Sentencing Guidelines explicitly recommend that district judges 

impose the standard conditions of supervision, including the employment condition 

at issue here, in every case. See U.S.S.G. § 5D1.3(c)(7). We do not consider 

conditions authorized by the people’s representatives in Congress and made a 

standard part of nearly every criminal judgment to be so “unusual” as to violate the 

Eighth Amendment. See Gementera, 379 F.3d at 608–10. 
5 22-10207 

Any argument that the work requirement could be “cruel” in Hood’s case is 

foreclosed by the safety valve in each condition. The work requirement explicitly 

states that Hood must be gainfully employed “unless the probation officer excuses 

[him] from doing so.” And the community service requirement also allows the 

completion of “educational or vocational program[s]” in lieu of employment or 

community service. While Hood’s current health issues are real—though how much 

they keep him from working has not been independently evaluated—their effect on 

his future capacity to work is largely speculative. This speculation combined with 

the probation officer’s power to tailor the requirements to fit Hood’s physical 

capabilities undercuts his argument that the conditions of supervised release are 

unconstitutional as applied to him. 

Plain error review allows the court to address an error raised for the first time 

on appeal if it finds that there was (1) an error, (2) that was plain, (3) that affected 

substantial rights, and (4) seriously affected the “fairness, integrity, or public 

reputation of judicial proceedings.” United States v. Yijun Zhou, 838 F.3d 1007, 1012 

(9th Cir. 2016) (quoting United States v. Myers, 804 F.3d 1246, 1257 (9th Cir. 2015)). 

Because the conditions imposed are constitutional, there was no error, and the plain 

error analysis stops at its first step. 

The sentence is AFFIRMED.