United States v. Daniel O'neil, Jr. , 546 F. App'x 662 ( 2013 )

FILED
NOT FOR PUBLICATION NOV 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10523
Plaintiff - Appellee, D.C. No. 2:08-cr-00085-FCD
v.
MEMORANDUM*
DANIEL JAMES O’NEIL, Jr.,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Jr., District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Daniel James O’Neil, Jr., appeals from the district court’s judgment and
challenges the 78-month sentence and several conditions of supervised release
imposed following his guilty-plea conviction for possession of one or more matters
*
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).
containing a depiction of minors engaged in sexually explicit conduct, in violation
of 18 U.S.C. § 2252(a)(4)(B). We dismiss in part and vacate and remand in part.
The government argues that this appeal is barred by an appeal waiver in the
parties’ plea agreement. We review de novo whether a defendant has waived his
right to appeal. See United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).
O’Neil’s contention that the government waived its right to assert the appeal
waiver fails because the government raised the appeal waiver in its answering
brief. See United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011). O’Neil’s
contention that the appeal waiver does not encompass the supervised release
conditions is also without merit. See Watson, 582 F.3d at 986 (waiver of right to
appeal “any aspect” of the sentence unambiguously includes conditions of
supervised release).
O’Neil also argues that the appeal waiver is unenforceable because his
sentence is unconstitutional in that it was based on erroneous and inaccurate facts.
We disagree. The record reflects that O’Neil was sentenced consistently with the
requirements of due process. See United States v. Vanderwerfhorst, 576 F.3d 929,
935-36 (9th Cir. 2009) (to establish due process violation at sentencing, defendant
must show that his sentence was “demonstrably” based on false or unreliable
information).
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Finally, O’Neil contends that special condition of supervision number eight
violates his fundamental right to procreate and raise children. Because the record
suggests that the district court did not intend for special condition of supervision
number eight to apply to O’Neil’s children, we adopt a narrowing construction of
that condition to exempt his children, thereby ensuring that the condition does not
impinge on his fundamental right to familial association. See United States v. Wolf
Child, 699 F.3d 1082, 1095 n.3 (9th Cir. 2012). We remand to the district court
with instructions to modify the condition to conform to our narrow construction.
We dismiss the remainder of the appeal as barred by the appeal waiver.
DISMISSED in part; VACATED in part and REMANDED with
instructions.
3 10-10523