United States v. Stolte ( 2009 )

FILED
NOT FOR PUBLICATION DEC 15 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 07-50571
Plaintiff - Appellee, D.C. No. CR-07-00200-RGK-1
v.
MEMORANDUM *
MICHAEL JOHN STOLTE,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted December 11, 2009**
Pasadena, California
Before: HALL and SILVERMAN, Circuit Judges, and CONLON, *** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
Michael John Stolte appeals from the term of supervised release imposed
following his guilty-plea conviction for receipt of child pornography, in violation
of 18 U.S.C. § 2252A(a)(2)(A). We have jurisdiction pursuant to 28 U.S.C.
§ 1291, and we affirm in part, and vacate and remand in part.
Stolte first contends that the district court failed to adequately explain its
reasons for imposing a lifetime term of supervised release. Although the district
court did not expressly state its reasons for imposing a lifetime term of supervised
release, the record reflects that the district court appropriately considered and
rejected the arguments and evidence submitted by Stolte in support of this claim.
See United States v. Daniels, 541 F.3d 915, 922 (9th Cir. 2008). Accordingly, the
district court did not procedurally err. See United States v. Carty, 520 F.3d 984,
996 (9th Cir. 2008) (en banc).
Stolte also contends that the length of the term is substantively unreasonable.
The district court was within its discretion to conclude that a lifetime term of
supervised release was necessary to protect the public and to rehabilitate Stolte.
The term was not substantively unreasonable under the circumstances. See
Daniels, 541 F.3d at 923-24; see also United States v. Cope, 527 F.3d 944, 952
(9th Cir. 2008).
Stolte also contends that the district court’s imposition of four special
conditions of supervised release involve a greater deprivation of liberty than is
reasonably necessary to protect the public and prevent recidivism. The district
court did not plainly err in imposing a special condition restricting Stolte’s access
to a computer without first obtaining prior approval, or in imposing a special
condition allowing the probation officer to search his computer and monitor his
computer usage. See United States v. Goddard, 537 F.3d 1087, 1090 (9th Cir.
2008); United States v. Rearden, 349 F.3d 608, 621 (9th Cir. 2003). These
conditions are “construed not to condition routine or automatic software additions,
deletions, upgrades, updates, installations, repairs, or other modifications on prior
approval.” Goddard, 537 F.3d at 1090-91. Accordingly, these special conditions
are affirmed. However, the special conditions prohibiting Stolte from accessing
via computer any material relating to child pornography, and prohibiting him from
possessing any materials depicting and/or describing child pornography, are
vacated and remanded for further consideration in light of recent authority. See
Cope, 527 F.3d at 957-58.
Finally, as the government concedes, a special condition in the written
judgment requiring Stolte to register as a sex offender in any state where he
resides, is employed, carries on a vocation, or is a student, conflicts with the
district court’s more limited oral pronouncement of the condition at sentencing.
We remand for the district court to change the written judgment to conform with
the oral pronouncement of this condition. See United States v. Allen, 157 F.3d 661,
668 (9th Cir. 1998).
AFFIRMED in part; VACATED and REMANDED in part.