NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

KEVIN WILLIAM DURNELL, 

Defendant-Appellant.

No. 18-50116 

D.C. No. 5:11-cr-00092-R-1 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Manuel L. Real, District Judge, Presiding

Submitted October 9, 2018**

Pasadena, California

Before: IKUTA and OWENS, Circuit Judges, and GILLIAM,*** District Judge.

Kevin Durnell appeals the district court’s revocation of his supervised 

release and imposition of a nine-month term of imprisonment. We have 

 

* 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 Haywood S. Gilliam, Jr., United States District Judge 

for the Northern District of California, sitting by designation.

FILED

JAN 16 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-50116 

jurisdiction pursuant to 28 U.S.C. § 1291. We affirm the revocation of release and 

the sentence imposed. We modify the district court’s judgment imposing three 

conditions of supervised release which this court has found to be unconstitutionally 

vague, and affirm the judgment as modified.

1. Durnell argues that he was not under the district court’s jurisdiction when 

he was alleged to have violated the conditions of his supervised release term in 

2018 because that term, imposed by the court in 2016, exceeded the statutory 

maximum. Thus, Durnell contends that his revocation must be vacated and his 

present term of supervised release must be terminated. There is no dispute that the 

district court’s imposition of a three-year term of supervised release following 

revocation in 2016 exceeded its statutory authority. See 18 U.S.C. §§ 3583(e), (h). 

Durnell, nonetheless, was serving a term of supervised release at the time of the 

2018 revocation proceeding—even if one imposed in error—and thus the court had 

jurisdiction over him. See United States v. Castro-Verdugo, 750 F.3d 1065, 1068–

69 (9th Cir. 2015).

The cases Durnell cites for the principle that “[t]he Court has consistently 

recognized that § 3583 establishes the parameters of a district court’s supervisedrelease jurisdiction” do not support his argument. Two of those cases involved 

Section 3583(i), which governs a court’s power to revoke a term of supervised 

release “beyond the expiration of the term of supervised release.” See United 
3 18-50116 

States v. Campbell, 883 F.3d 1148, 1152 (9th Cir. 2018); United States v. VargasAmaya, 389 F.3d 901, 907 (9th Cir. 2004). That section of the statute is not at 

issue in this case. The third case upon which Durnell relies, United States v. Wing,

held only that the district court lacked jurisdiction under Section 3583(e)(3) to 

revoke a second term of supervised release that had not yet commenced, where the 

revocation was based on newly-discovered violations of conditions of the 

defendant’s previously-revoked first term of supervised release. See 682 F.3d 861, 

862–63 (9th Cir. 2012). None of these cases involved the circumstances present in 

this case, in which Durnell was serving a term of supervised release at the time of 

the district court’s revocation order, and the district court revoked that term of 

supervised release.

Accordingly, we decline to reach the merits of Durnell’s argument because 

an appeal challenging a “revocation proceeding is not the proper avenue through 

which to attack the validity of the original sentence.” See United States v. 

Gerace, 997 F.2d 1293, 1295 (9th Cir. 1993).

2. Durnell and the government agree that Standard Conditions 5, 6, and 14

are unconstitutionally vague under this court’s holding in United States v. Evans, 

883 F.3d 1154, 1162 (9th Cir. 2018). Further, they agree that we may modify 

those conditions rather than remanding to the district court to do so. 

We agree that the conditions imposed on Durnell are unconstitutional under 
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Evans, and that we may modify them without remand. See United States v. Hall, 

No. 17-10422, 2019 WL 166127, at *1 (9th Cir. Jan. 11, 2019) (per curiam).

We strike the following phrase from Standard Condition 5: “and meet other 

family responsibilities.”

We strike the word “regularly” from Standard Condition 6.

We strike the words “third parties of risks that may be occasioned by the 

defendant’s criminal record or personal history or characteristics” from Standard 

Condition 14. In their place, we add the words “specific persons of specific risks 

posed by defendant’s criminal record.” See U.S. Sentencing Guidelines Manual § 

5D1.3(c)(12).

AFFIRMED as MODIFIED.