United States v. Joshua Fernandez , 558 F. App'x 772 ( 2014 )

FILED
NOT FOR PUBLICATION FEB 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50231
Plaintiff - Appellee, D.C. No. 2:12-cr-00721-R
v.
MEMORANDUM*
JOSHUA ANTONE BANGAWAN
FERNANDEZ, a.k.a. j_man89,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted February 18, 2014**
Before: ALARCÓN, O’SCANNLAIN, and FERNANDEZ, Circuit Judges.
Joshua Antone Bangawan Fernandez appeals from the district court’s
judgment and challenges the 20-year term of supervised release and mandatory
drug-testing condition imposed following his guilty-plea conviction for distribution
*
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).
of child pornography, in violation of 18 U.S.C. § 2252A(a)(2)(A) and (b)(1). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Fernandez contends that the district court erred by failing to consider and
address his mitigating arguments and, as a result, imposed a substantively
unreasonable term of supervised release. The record shows that the district court
did not procedurally err and the 20-year term is substantively reasonable in light of
the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors.
See United States v. Apodaca, 641 F.3d 1077, 1082-84 (9th Cir. 2011).
Fernandez next contends that the district court erred in imposing the
mandatory condition of drug testing as part of his supervised release. Because
Fernandez did not object to this condition in the district court, we review for plain
error, see United States v. Garcia, 522 F.3d 855, 860 (9th Cir. 2008), and find
none. Drug testing is a mandatory condition of supervised release. See 18 U.S.C.
§ 3583(d). Although Fernandez does not have a history of drug use and drugs did
not play a role in the offense, the district court properly imposed this condition
because there is no evidence he has a low risk of future substance abuse. See
United States v. Jackson, 189 F.3d 820, 825 (9th Cir. 1999).
AFFIRMED.
2 13-50231