United States v. Cesar Ayala ( 2022 )

FILED
NOT FOR PUBLICATION
FEB 10 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10096
Plaintiff-Appellee, D.C. No. 3:20-cr-00058-SI-1
v.
MEMORANDUM*
CESAR AYALA,
Defendant-Appellant.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Submitted February 7, 2022**
San Francisco, California
Before: WARDLAW, IKUTA, and BADE, Circuit Judges.
Cesar Ayala appeals the district court’s imposition of three supervised
release conditions after he pleaded guilty to one count of possessing child
*
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).
pornography in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2). We have
jurisdiction under 28 U.S.C. § 1291. We affirm.
The district court did not abuse its discretion in imposing Special Condition
7 because that condition does not restrict Ayala’s liberty to a greater extent than is
necessary to rehabilitate Ayala and deter him from possessing child pornography.
Given that Ayala stored thousands of child pornography images and dozens of
child pornography videos across multiple devices, including two different cell
phones, the district court reasonably concluded that a condition limiting Ayala’s
possession of electronic devices that can process or store child pornography to
those approved by his probation officer “is reasonably necessary to discourage him
from obtaining child pornography.” United States v. Goddard, 537 F.3d 1087,
1093 (9th Cir. 2008).
We reject Ayala’s argument that Special Condition 7 is overbroad because it
is not limited to devices capable of accessing the internet, given that “even
inexpensive electronic storage media today can store the equivalent of millions of
pages of information.” United States v. Comprehensive Drug Testing, Inc., 621
F.3d 1162, 1175 (9th Cir. 2010) (en banc) (per curiam), overruled in part on other
grounds as recognized by Demaree v. Pederson, 887 F.3d 870, 876 (9th Cir. 2018)
(per curiam). Ayala’s use of a device that lacked internet access (an external hard
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drive) to store hundreds of images of child pornography, supports the
reasonableness of Special Condition 7’s scope.
We also reject Ayala’s argument that Special Condition 7’s reference to 18
U.S.C. § 1030(e)(1) renders the condition overbroad. We may “adopt a narrow
construction of conditions of supervised release if they are readily susceptible to a
limiting construction.” United States v. Ped, 943 F.3d 427, 433 (9th Cir. 2019)
(alteration and internal quotation marks omitted). Given that Special Condition 7
includes “cell phones” as an example of a device covered under § 1030(e)(1), and
§ 1030(e)(1) excludes “an automated typewriter or typesetter, a portable hand held
calculator, or other similar device,” the reference to § 1030(e)(1) in Special
Condition 7, when construed in context, bars the use of devices akin to cell phones
(e.g., smart watches and tablets) that can be used to process or store child
pornography, but does not bar the use of basic electronic devices akin to handheld
calculators (e.g., microwave ovens, refrigerators, and radios), which cannot access
or store child pornography. Construed in that manner, the district court’s
imposition of Special Condition 7 “imposes no greater a deprivation of liberty than
is reasonably necessary to discourage [Ayala] from obtaining child pornography,”
Goddard, 537 F.3d at 1093, and the district court therefore did not abuse its
discretion, see id.3
The district court did not abuse its discretion in imposing Special Condition
8. Like the substantially identical condition we upheld in United States v. Rearden,
349 F.3d 608, 620–21 (9th Cir. 2003), Special Condition 8 does not involve a
greater deprivation of liberty than is reasonably necessary “because it is not
absolute; rather, it allows for approval of appropriate online access by the
Probation Office,” id. at 621, and the probation officer stated in open court that
once a particular device is approved and monitored, Ayala would be allowed to
access the internet through that device without prior approval.1 We reject Ayala’s
argument that the condition is overbroad because we have long held, in child
pornography cases, that similar conditions requiring probation officer approval are
permissible. See, e.g., id. Therefore, Ayala’s reliance on cases involving
convictions for counterfeiting United States currency, see United States v. Sales,
476 F.3d 732, 734–35 (9th Cir. 2007), and securities fraud, see United States v.
LaCoste, 821 F.3d 1187, 1189–90 (9th Cir. 2016), is misplaced.
1
We reject Ayala’s contention that Rearden “must be reassessed” in light of
Packingham v. North Carolina, 137 S. Ct. 1730 (2017). As a three-judge panel,
we are bound to follow circuit precedent unless, as relevant here, the reasoning of
that precedent is “clearly irreconcilable” with the reasoning of an intervening
Supreme Court decision. Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003)
(en banc). Rearden and Packingham are not clearly irreconcilable.
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Finally, the district court did not plainly err in imposing Special Condition
6.2 The district court determined that Ayala’s computer and internet activity must
be monitored and specified how the activity would be monitored: pursuant to the
probation office’s Computer and Internet Monitoring Program (CIMP) and the
Acceptable Use Contract (AUC). “[W]here the [district] court makes the
determination of whether a defendant must abide by a condition, and how . . . a
defendant will be subjected to the condition, it is permissible to delegate to the
probation officer the details of where and when the condition will be satisfied.”
United States v. Stephens, 424 F.3d 876, 880 (9th Cir. 2005). Accordingly, the
district court’s delegation of the details of compliance monitoring to the probation
office is not an impermissible delegation of authority.
We also reject Ayala’s challenges to specific provisions of the CIMP and
AUC. All but one of the provisions Ayala challenges are no longer part of the
CIMP and AUC. The only remaining provision Ayala challenges prohibits him
from accessing online pornography without his probation officer’s approval, and
we have previously upheld a substantially similar provision after construing it to
2
Ayala failed to object to Special Condition 6 or any provision of the
Acceptable Use Contract in district court. Therefore, we reject his argument that
plain error review does not apply to his challenges to Special Condition 6 because
he raised similar challenges in district court in connection with Special Condition
8.
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avoid a greater deprivation of liberty than is necessary. See United States v.
Gnirke, 775 F.3d 1155, 1165–66 (9th Cir. 2015). Consistent with Gnirke, we
construe the provision narrowly as applying to (1) “any materials with depictions
of ‘sexually explicit conduct’ involving children, as defined by 18 U.S.C.
§ 2256(2),” and (2) “any materials with depictions of ‘sexually explicit conduct’
involving adults, defined as explicit sexually stimulating depictions of adult sexual
conduct that are deemed inappropriate by [Ayala’s] probation officer.” Id. at 1166.
That construction is “in line with what the district court clearly intended,” id.,because the original AUC prohibited Ayala from accessing online pornography
without permission from his probation officer, and the district court included
compliance with the AUC as a condition of supervised release in the final
judgment, and expressly referenced the AUC during its oral pronouncement of
judgment. So construed, the provision is appropriate.
AFFIRMED.
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