United States v. Cyrus Sullivan , 588 F. App'x 631 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 16 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30207
Plaintiff - Appellee, D.C. No. 3:13-cr-00064-HZ-1
v.
ORDER*
CYRUS ANDREW SULLIVAN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Submitted December 12, 2014**
Seattle, Washington
Before: McKEOWN, TALLMAN, and OWENS, Circuit Judges.
On April 15, 2013 and pursuant to a signed plea agreement, Cyrus Sullivan
knowingly and voluntarily pleaded guilty to making a threatening communication in
violation of 18 U.S.C. § 875(c) through use of electronic communications, including
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
the Internet. We have examined the terms of Sullivan’s waiver of appeal and find that
its scope is unambiguous and precludes an appeal of the challenged terms of
supervised release:
Defendant knowingly and voluntarily waives the right to appeal from
any aspect of the conviction and sentence on any grounds, except for a
claim that the sentence imposed exceeds the statutory maximum penalty.
Should defendant seek an appeal, despite this waiver, the USAO may
take any position on any issue on appeal. Defendant also waives the
right to file any collateral attack, including a motion under 28 U.S.C.
§ 2255, challenging any aspect of the conviction or sentence on any
grounds, except on grounds of ineffective assistance of counsel, and
except as provided in Fed. R. Crim. P. 33 and 18 U.S.C. § 3582(c)(2).
Plea Agreement ¶ 12 (emphasis added); see also United States v. Joyce, 357 F.3d 921,
923–25 (9th Cir. 2004) (plea agreement waiver of “any aspect of the sentence imposed
in this case” included waiver of right to appeal special conditions of supervised
release).
The only possible exception that may apply to Sullivan’s waiver of appeal is if
the sentence is illegal because it “exceeds the permissible statutory penalty for the
crime or violates the Constitution.” United States v. Bibler, 495 F.3d 621, 624 (9th
Cir. 2007). We have examined special conditions of supervised release 7 and 8 and
conclude that they are not illegal. See United States v. Goddard, 537 F.3d 1087,
1089–90 (9th Cir. 2008); United States v. Rearden, 349 F.3d 608, 620–21 (9th Cir.
2003). Because the use of a computer and the Internet was “essential to the
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commission of” Sullivan’s crime, United States v. Antelope, 395 F.3d 1128, 1142 (9th
Cir. 2005), and because the conditions are “not absolute,” but permit access
subsequent to approval by Probation, the conditions “do[] not plainly involve a greater
deprivation of liberty than is reasonably necessary,” Rearden, 349 F.3d at 621. See
also 18 U.S.C. § 3583(d).
DISMISSED.
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