United States v. William Green ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 8 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50257
Plaintiff-Appellee, D.C. No.
3:11-cr-00938-LAB-1
v.
WILLIAM GREEN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Hon. Larry A. Burns, Presiding
Submitted August 5, 2021**
Pasadena, California
Before: PAEZ, CALLAHAN, and HURWITZ, Circuit Judges.
William Green appeals the district court’s revocation of his supervised
release and imposition of a term of 18 months’ imprisonment under 18 U.S.C.
*
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).
§ 3583(e)(3).1 We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a), and we affirm.
1. Green claims that the district court erred by relying on evidence
obtained in violation of the Fourth and Sixth Amendments. Because Green did not
raise this issue before the district court, we review for plain error. United States v.
Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009). However, even assuming for the
sake of argument that the asserted constitutional violations occurred, the argument
fails, as “the exclusionary rule does not apply to supervised release revocation
hearings.” United States v. Hebert, 201 F.3d 1103, 1104 (9th Cir. 2000) (per
curiam).
2. Green also argues that the district court erred by miscalculating the
applicable Sentencing Guidelines range. We again review for plain error because
Green did not raise this argument before the district court. Hammons, 558 F.3d at
1103.
The parties agree that the appropriate Guidelines range for Green’s violation
was 3 to 9 months under U.S.S.G. § 7B1.4. However, Green contends the district
court erroneously calculated the Guidelines range as 3 to 24 months. Green is
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Green’s claim that the district court erred in finding that Green violated the
condition of supervised release prohibiting him from “patroniz[ing] any place”
where sexually explicit “materials or entertainment are the primary material or
entertainment available” is resolved in a contemporaneously filed opinion.
Green’s remaining claims are resolved herein.
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incorrect. The district court correctly calculated the Guidelines range as 3 to 9
months, but separately noted that Green also faced a statutory maximum term of
imprisonment of 24 months. 18 U.S.C. § 3583(e)(3); U.S.S.G. § 7B1.4, cmt. 4.
3. Green next contends that the district court’s sentence of 18 months’
imprisonment followed by 10 years of supervised release was substantively
unreasonable. We review the substantive reasonableness of a sentence for abuse of
discretion. Gall v. United States, 552 U.S. 38, 51 (2007). In doing so, “we are to
consider the totality of the circumstances,” and “may not reverse just because we
think a different sentence is appropriate.” United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008) (en banc).
Green violated the terms of his supervised release by viewing pornography
on his monitored devices numerous times despite the district court’s repeated
instructions not to do so. The district court was reasonably concerned that Green’s
demonstrated refusal to comply with this condition would lead Green towards
reoffending with respect to child pornography and that a significant term of
imprisonment was required to protect the public. Further, the district court cited
Green’s dishonesty and failure to take the revocation proceedings seriously as
supporting the imposition of an above-Guidelines term of imprisonment. Under
the circumstances, the district court’s decision to impose an 18-month term of
imprisonment was not an abuse of discretion.
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4. Green also contends that his sentence violated the Eighth Amendment
because it was grossly disproportionate to the crime. “We review de novo whether
a sentence violates the Eighth Amendment.” United States v. Meiners, 485 F.3d
1211, 1212 (9th Cir. 2007) (per curiam). “Generally, as long as the sentence
imposed on a defendant does not exceed statutory limits, this court will not
overturn it on Eighth Amendment grounds.” United States v. Albino, 432 F.3d
937, 938 (9th Cir. 2005) (per curiam) (quoting United States v. Parker, 241 F.3d
1114, 1117 (9th Cir. 2001)).
Green argues that even though the sentence he received was below the
statutory maximum, it was nevertheless grossly disproportionate to the crime
because viewing adult pornography is generally legal. He also cites his age,
medical issues, and the COVID-19 pandemic as factors weighing in favor of a
more lenient sentence. While the district court was entitled to and did consider
these factors, they do not establish that Green’s less than maximum sentence
amounted to a constitutional violation.
5. Finally, Green claims that there was a conflict between the oral
pronouncement and the written judgment regarding two conditions of his
supervised release. We review de novo any conflict between the written judgment
and oral judgment. United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006).
The written judgment included conditions which required Green to be
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evaluated for sex offender treatment and to undergo mental health treatments.
Green argues that the district court’s oral pronouncement of his conditions of
release relieved him of these responsibilities, and that when there is an
inconsistency between a written judgment and an unambiguous oral judgment, the
oral judgment controls. See United States v. Munoz-Dela Rosa, 495 F.2d 253, 256
(9th Cir. 1974) (per curiam).
We find no conflict between the oral pronouncement and the written
judgment. At his December 2, 2019, hearing, Green agreed to undergo a mental
health evaluation, complete a sex offender evaluation, and comply with treatment
if deemed necessary. The district court expressly ordered both evaluations to be
conducted. At his subsequent revocation hearing in September 2020, Green again
agreed to participate in sex offender counseling and offered to waive his previously
asserted objection to a mental health evaluation. At the conclusion of the hearing,
in response to a question from probation seeking to clarify that Green was still
required to undergo a sex offender evaluation, the court stated “I’m going to leave
it the way it was,” referring to the status quo following the December 2019 hearing
during which the court had ordered Green to receive the mental health and sex
offender evaluations. The court also confirmed that Green would be required
participate in mental health treatment. Thus, the district court’s oral
pronouncement was not inconsistent with the written judgment.
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AFFIRMED.
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