United States v. Juan Torres , 700 F. App'x 751 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10209
Plaintiff-Appellee, D.C. No.
1:13-cr-00390-AWI-BAM-1
v.
JUAN MARTIN TORRES, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted October 19, 2017**
San Francisco, California
Before: W. FLETCHER and TALLMAN, Circuit Judges, and HOYT,*** District
Judge.
Following his conviction for use of the internet in an effort to entice and
coerce a minor into illegal sexual activity, Juan Torres appeals his conviction and
*
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 Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
sentence. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
We affirm in part and reverse in part.
1. Torres challenges the admission of a short video depicting his prior
sexual assault of a minor and the victim’s corroborating testimony. We review a
district court’s admission of prior bad acts for abuse of discretion. United States v.
Hardrick, 766 F.3d 1051, 1055 (9th Cir. 2014). We hold the admission was
permissible and not unfairly prejudicial because it related to Torres’ intent and
modus operandi in targeting minors in his care and the district court provided
multiple limiting instructions. United States v. Cherer, 513 F.3d 1150, 1157–59
(9th Cir. 2008).
2. Torres appeals discretionary supervision conditions imposed by the
district court relating to alcohol, contact with minors, and residency requirements.
We ordinarily review conditions of supervised release for abuse of discretion, but
where as here, the defendant fails to object to the conditions, we review for plain
error. United States v. Wolf Child, 699 F.3d 1089, 1090 (9th Cir. 2012). We
affirm the district court’s imposition of supervisory conditions relating to contact
with minors and certain residency requirements because they relate to the court’s
goal in protecting the public from further crimes and contributing to Torres’
rehabilitation. See United States v. Daniels, 541 F.3d 915, 928 (9th Cir. 2008);
United States v. Carter, 159 F.3d 397, 400–01 (9th Cir. 1998). There is no plain
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error in requiring those conditions because any possible error or prejudice caused
by the district court’s decision “did not seriously affect the fairness, integrity, or
public reputation of the judicial proceedings.” United States v. Maciel-Vasquez,
458 F.3d 994, 996 (9th Cir. 2006).
As to the alcohol restrictions involving outpatient treatment, testing, and
abstinence from alcohol use or frequenting establishments that primarily sell
alcoholic substances, we reverse and remand to the district court to strike Torres’
alcohol-related conditions. Because there were no allegations of any inappropriate
alcohol or drug use, that a drinking establishment played a role in the crime, or any
indication of a prior history of substance abuse recited in the Pre-Sentence Report,
we hold that the district court’s imposition of alcohol-related supervisory
conditions constituted plain error. See United States v. Betts, 511 F.3d 872, 877–
81 (9th Cir. 2007); United States v. Napier, 463 F.3d 1040, 1044–45 (9th Cir.
2006).
The Judgment & Commitment Order should be amended to strike the
alcohol-related supervisory conditions.
AFFIRMED in part and REVERSED in part and REMANDED with
instructions.
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