United States v. Barsumyan ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 07-50251
Plaintiff-Appellee, D.C. No.
v.  CR-06-00867-GAF-
ARAM BARSUMYAN, aka Seal A (1), 1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted
January 10, 2008—Pasadena, California
Filed February 28, 2008
Before: Jerome Farris and Milan D. Smith, Jr.,
Circuit Judges, and H. Russel Holland,* District Judge.
Opinion by Judge Milan D. Smith, Jr.
*The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
1763
1766 UNITED STATES v. BARSUMYAN
COUNSEL
Davina T. Chen, Deputy Federal Public Defender, Los Ange-
les, California, for the defendant-appellant.
Alexander A. Bustamante and Anne Voights, Assistant
United States Attorneys, Major Frauds Section, Los Angeles,
California, for the plaintiff-appellee.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Defendant-Appellant Aram Barsumyan appeals the sen-
tence imposed by the district court following his guilty plea
to one count of possession of device-making equipment under
18 U.S.C. § 1029(a)(4). Barsumyan contends that his 21-
month prison sentence was unreasonable because the opera-
tion of U.S.S.G. § 2B1.1(b)(10) effected a 6-level increase in
his offense level. Barsumyan also argues that the sentencing
court impermissibly imposed two conditions of supervised
release: a restriction on “access[ing] or possess[ing] any com-
puter or computer-related devices in any manner,” and a
requirement that, if he is deported and reenters the country, he
UNITED STATES v. BARSUMYAN 1767
report to the United States Probation Office. We affirm the
sentence and reporting condition, but reverse and vacate the
computer restriction and remand to the district court for
reconsideration of that condition.
Facts, Procedural History, and Jurisdiction
In October 2005, an informant cooperating with the United
States Secret Service charged that Defendant-Appellant Aram
Barsumyan was involved in schemes to manufacture counter-
feit credit cards. Barsumyan told this informant that he was
interested in making contacts to help him engage in various
kinds of credit card fraud. The informant agreed to introduce
Barsumyan to a hotel employee, who, unbeknown to Barsu-
myan, was an undercover Secret Service Case Agent. During
an arranged meeting, the Agent told Barsumyan that, in the
course of her duties at the hotel, she had access to guests’
credit cards. Barsumyan gave the Agent a “skimming device,”1
and asked her to covertly “skim” the hotel guests’ credit cards
when they registered. The Agent was instructed to then return
the device to Barsumyan. He then promised her that for every
ten credit card numbers she captured on the device, he would
give her two “high quality” counterfeit credit cards.
The following month, the Agent returned the skimming
device to Barsumyan, loaded with ten credit card numbers. At
a subsequent rendezvous, Barsumyan gave the Agent one
counterfeit credit card. When the Agent asked for the prom-
ised second card, Barsumyan told her that she was only get-
ting one, because she had only given him six credit card
1
In this context, “skimming device” (or sometimes just “skimmer”)
refers to a small electronic device that can capture the account information
encoded on a credit card’s magnetic strip. The information is stored on the
device until it is downloaded onto a computer, whose operator can then
manufacture counterfeit credit cards with magnetic strips identical to those
on the genuine cards. Skimming devices can be attached to ordinary credit
card readers, capturing a new card’s information every time a card is
swiped.
1768 UNITED STATES v. BARSUMYAN
numbers on the skimmer. He also told her that in light of her
breach of their understanding, he was altering the deal: there-
after, he would require twenty-five numbers if she wanted an
additional card. He then returned the skimming device to the
Agent.
Barsumyan was arrested and indicted for one count of pro-
ducing, using, and trafficking in a counterfeit credit card, 18
U.S.C. § 1029(a)(1), and three counts of possession of device-
making equipment, 18 U.S.C. § 1029(a)(4).2 Pursuant to a
plea agreement, Barsumyan pleaded guilty to one count of
possession of device-making equipment. The agreement con-
templated a base offense level of 6, pursuant to U.S.S.G.
§ 2B1.1(a)(2), with a 2-level increase pursuant to U.S.S.G.
§ 2B1.1(b)(10)(A)(i) for possession of device-making equip-
ment. The government also agreed to recommend a sentence
at the low end of the applicable range, as long as the total
offense level was 8 or lower.
U.S.S.G. § 2B1.1(b)(10), however, not only mandates a 2-
level increase in all cases, but also requires that “[i]f the
resulting offense level is less than level 12, increase to level
12.” Section 2B1.1(b)(10) therefore effectively increased Bar-
sumyan’s offense level by six levels. The Presentence Report
recommended a 2-level downward adjustment for acceptance
of responsibility, yielding a total offense level of 10. Barsu-
myan’s probation officer recommended a sentence of 21
months, at the high end of the range prescribed for an offense
level of 10, and recommended the following conditions for
supervised release:
2
“Device-making equipment” is defined as “any equipment, mecha-
nism, or impression designed or primarily used for making an access
device or a counterfeit access device.” 18 U.S.C. § 1029(e)(6). “Access
device” means, in relevant part, “any card, . . . account number, electronic
serial number, . . . or other means of account access that can be used, alone
or in conjunction with another access device, to obtain money, goods, ser-
vices, or any other thing of value, or that can be used to initiate a transfer
of funds.” 18 U.S.C. § 1029(e)(1).
UNITED STATES v. BARSUMYAN 1769
3. The defendant shall comply with the immigra-
tion rules and regulations of the United States,
and, if deported from this country, either volun-
tarily or involuntarily, not reenter the United
States illegally. The defendant is not required to
report to the Probation Office while residing
outside of the United States; however, within 72
hours of release from any custody or any reentry
to the United States during the period of Court-
ordered supervision, the defendant shall report
for instructions to the United States Probation
Office . . . .
...
5. The defendant shall not access or possess any
computer or computer-related devices in any
manner, or for any purpose, unless approved in
advance by the Probation Officer.
The justification provided for the latter condition was simply,
“Condition No. 5 is recommended due to the nature of the
offense.”
Over Barsumyan’s objection that the 6-level increase was
inappropriate due to the nature of Barsumyan’s offense, the
district court adopted the recommendations of the probation
officer, and imposed a 21-month sentence. The district court
further adopted, without analysis, recommended conditions of
supervised release No. 3 and No. 5. Barsumyan appealed.
We have jurisdiction to hear this case under 28 U.S.C.
§ 1291.
Sentence
Barsumyan first appeals his 21-month sentence.
1770 UNITED STATES v. BARSUMYAN
1. Standard of Review
United States v. Booker rendered the Sentencing Guidelines
“effectively advisory.” 543 U.S. 220, 245 (2005). Following
Booker, this court reviews criminal sentences for “reasonable-
ness,” in a “two-step review procedure” outlined in United
States v. Cantrell, 433 F.3d 1269, 1278-81 (9th Cir. 2006).
First, we must “determine whether the district court prop-
erly calculated the applicable range under the advisory guide-
lines.” United States v. Mohamed, 459 F.3d 979, 985 (9th Cir.
2006). In doing so, we review the district court’s interpreta-
tion of the Guidelines de novo, the determination of the facts
for clear error, and the application of the Guidelines to the
facts for abuse of discretion. Cantrell, 433 F.3d at 1279. In
the event we find error, we remand to the district court so it
can recalculate the guideline range in accordance with our
direction. Id.
Second, “we will next consider challenges to the reason-
ableness of the overall sentence in light of all the 18 U.S.C.
§ 3553(a) factors, including the applicable Guidelines range.”
Id. at 1280.3 These factors are to be applied parsimoniously—
3
These factors are:
(1) the nature and circumstances of the offense and the history
and characteristics of the defendant;
(2) the need for the sentence imposed—
(A) to reflect the seriousness of the offense, to promote
respect for the law, and to provide just punishment for the
offense;
(B) to afford adequate deterrence to criminal conduct;
(C) to protect the public from further crimes of the defen-
dant; and
(D) to provide the defendant with needed educational or
vocational training, medical care, or other correctional treat-
ment in the most effective manner;
UNITED STATES v. BARSUMYAN 1771
the sentence must be “sufficient, but not greater than neces-
sary, to comply with the purposes” of punishment. 18 U.S.C.
§ 3553(a). Our review of the district court’s sentence is for
“reasonableness,” which “merely asks whether the trial court
abused its discretion.” Rita v. United States, 127 S. Ct. 2456,
2465 (2006); see also Gall v. United States, 128 S. Ct. 586,
591 (2007) (holding that “courts of appeals must review all
sentences—whether inside, just outside, or significantly out-
side the Guidelines range—under a deferential abuse-of-
discretion standard”).
2. Calculation of the Guidelines Range
Both parties concede that the district court’s determination
of sentencing levels within the Guidelines was correct.
Although Barsumyan takes issue with the 6-level increase, he
does not do so on the ground that the enhancement does not
apply here. Rather, he appears to advocate a sort of hybrid
reasonableness test, arguing that “the enhancement—that is,
the plain language of the enhancement—is itself unreason-
able,” and therefore ought not to apply.
Barsumyan contends that the severity of the § 2B1.1(b)(10)
(3) the kinds of sentences available;
(4) the kinds of sentence and the sentencing range established
for . . . the applicable category of offense committed by the appli-
cable category of defendant as set forth in the guidelines . . .
(5) any pertinent policy statement . . . issued by the Sentencing
Commission . . . subject to any amendments made to such policy
statement by act of Congress . . . .
(6) the need to avoid unwarranted sentence disparities among
defendants with similar records who have been found guilty of
similar conduct; and
(7) the need to provide restitution to any victims of the offense.
18 U.S.C. § 3553(a).
1772 UNITED STATES v. BARSUMYAN
increase targets “more aggravated and sophisticated forms of
identity theft” than the simple credit card fraud found in this
case. U.S.S.G. app. C, amend. 596 (2000) (describing the
rationale for the 12-level minimum). He also claims that the
12-level minimum was aimed at two classes of criminals:
those who engage in the cloning of wireless telephones4 and
those who engage in “affirmative” or “breeding” identity theft.5
To apply § 2B1.1(b)(10) to him, he argues, would create an
unreasonably broad and severe enhancement.
[1] Barsumyan’s suggested approach to sentencing review
clashes with this court’s approach, as set forth in Cantrell.
That decision envisions two discrete steps in reviewing sen-
tences: first, review of the calculation to verify that “the dis-
trict court committed no error in applying the Guidelines,”
followed by “challenges to the reasonableness of the overall
sentence.” 433 F.3d at 1280; see also Booker, 543 U.S. at 261
(stating that 18 U.S.C. § 3742(e)(3) “told appellate courts to
determine whether the sentence ‘is unreasonable’ ”). Barsu-
myan, by contrast, seems to urge us to perform a sort of mini-
Booker reasonableness determination at each step in deter-
mining the Sentencing Guidelines offense level.
[2] Barsumyan’s proposition that the district court ought to
have reviewed each step for appropriateness under 18 U.S.C.
§ 3553(a) is in error. The statutory factors are to be applied
4
Both wireless telephones and credit cards are considered “access
devices” for these purposes. The cloning of wireless telephones was con-
sidered particularly serious because cloned cell phones are commonly
used by drug dealers and other criminals to evade surveillance. See 144
Cong. Rec. S3021 (1998) (statement of Sen. Leahy); 143 Cong. Rec.
S2655 (1997) (statement of Sen. Kyl).
5
“Affirmative” or “breeding” identity theft involves “affirmative activ-
ity to generate or ‘breed’ another level of identification means without the
knowledge of the individual victim whose identification means are mis-
used, purloined, or ‘taken over.’ ” U.S.S.G. app. C, amend. 596 (2000).
This next level of identification is, in turn, used to create new bank
accounts, loans, etc.
UNITED STATES v. BARSUMYAN 1773
“in determining the particular sentence to be imposed.” 18
U.S.C. § 3553(a). Post-Booker, defendants certainly may
attack the effect of the Sentencing Guidelines by arguing that
they reflect over-broad or mistaken policy priorities. Interest-
ingly, one of the Supreme Court’s most recent opinions
respecting the Guidelines blessed just such a policy-based
deviation from the Sentencing Guidelines. See Kimbrough v.
United States, 128 S. Ct. 558 (2007) (allowing variance from
Guidelines-prescribed sentencing range due to disagreement
with crack cocaine/powder cocaine disparity). That deviation
however, must come (as it did in Kimbrough) after the advi-
sory Guidelines range has been determined, when the district
court examines the final advisory sentencing range dictated by
the Guidelines in light of all relevant § 3553(a) factors and
“the particular circumstances of [the defendant]’s case.” Id. at
576; see also id. at 575 (“The District Court began by prop-
erly calculating and considering the advisory Guidelines
range. It then addressed the relevant § 3553(a) factors.”).6 If
the operation of a particular guideline has inappropriately dis-
torted the final range calculation, that is one factor which the
district court may take into account in determining the final
sentence.
[3] The touchstone of a policy-based argument against the
Sentencing Guidelines, therefore, is not that a particular
6
In Kimbrough, for example, the district court first cited numerous miti-
gating factors pertaining to the case itself, such as the defendant’s military
service, steady history of employment, and lack of prior convictions, as
well as the unremarkable nature of the offense. Kimbrough, 128 S. Ct. at
575. Importantly, even as the sentencing court then took into account the
irrational effect of the crack/powder disparity, the Supreme Court noted
with approval that “the court did not purport to establish a ratio of its own.
Rather, it appropriately framed its final determination in line with
§ 3553(a)’s overarching instruction to ‘impose a sentence sufficient, but
not greater than necessary’ to accomplish the sentencing goals advanced
in § 3553(a)(2).” Id. Instead of rewriting each characteristic, enhancement,
and adjustment, the district court in Kimbrough properly calculated the
advisory range according to the Guidelines as written, and only deviated
from that range after engaging in a holistic § 3553(a) review.
1774 UNITED STATES v. BARSUMYAN
upward or downward adjustment, measured in levels, is
unreasonable in isolation, but rather that its operation in the
case under consideration results in a sentence, measured in
months and years, that is inappropriate in light of § 3553(a).
We then review that final, holistic sentencing determination
for reasonableness.
3. Reasonableness of the Sentence
[4] In addition to other 18 U.S.C. § 3553(a) factors, a dis-
trict court must consider “any pertinent policy statement
issued by the Sentencing Commission.” 18 U.S.C.
§ 3553(a)(5). Similarly, § 3553(a)(1) requires consideration of
“the nature and circumstances of the offense.” Both are rele-
vant to Barsumyan’s over-criminalization complaint—that he
is a petty criminal caught in a net meant to snare far more
serious crimes.
[4] The sentencing court, however, cited a number of
§ 3553(a) factors that militate for a harsher punishment. It
stated that “with respect to the nature and circumstances of
the offense . . . but for the information from the informant,
this could have been a case involving very substantial losses
and numerous victims.” The record reflects that, by stating
that he would provide his ersatz co-conspirator with two fake
cards for every ten credit card numbers she provided, Barsu-
myan initially contemplated at a minimum ten victims, and
possibly many more.7 The court also noted the “calculated”
nature of the offense.
[6] Second, when it considered the history and characteris-
tics of the defendant, as well as the need to protect the public,
the court noted that Barsumyan was not only “a recidivist,”
7
After allegedly receiving only six numbers, Barsumyan demanded
another 25 before he would provide the Agent with another counterfeit
credit card. In other words, before his arrest, Barsumyan contemplated at
least 31 potential victims.
UNITED STATES v. BARSUMYAN 1775
but one whose prior crimes included one conviction for credit
card fraud. It also observed that “His criminal history is
escalating, not deescalating, and those all suggest that prison
time is appropriate in this case.”
[7] Therefore, the district court adequately explained the
sentence even though it did not specifically comment on Bar-
sumyan’s argument regarding the over-broadness of
§ 2B.1.1(b)(10)(A)(i). Given the defendant’s criminal history
(including a prior conviction, for which he was then on proba-
tion, for a related offense), the calculated and deliberate
nature of the crime, and the contemplated number of victims
had this crime been successful, we hold that a 21-month sen-
tence was not unreasonable.
Conditions of Supervised Release
[8] Barsumyan objects to two conditions of supervised
release: the ban on the use of computers (Condition #5) and
the requirement that he report to the Parole Office upon reen-
try after removal (Condition #3). Under 18 U.S.C. § 3583(d),
conditions of supervised release must be “reasonably related”
to the purposes of punishment set forth in 18 U.S.C.
§ 3553(a)(1) and “involve[ ] no greater deprivation of liberty
than is reasonably necessary” to deter future criminal conduct,
protect the public from further crimes, and promote rehabilita-
tion of the defendant.
Because Barsumyan failed to object to either condition at
his sentencing hearing, we review their imposition for plain
error under Federal Rule of Criminal Procedure 52(b). Plain
error is (1) error, (2) that is plain and (3) affects “substantial
rights.” United States v. Olano, 507 U.S. 725, 732-34 (1993).
“Moreover, Rule 52(b) leaves the decision to correct the for-
feited error within the sound discretion of the court of
appeals, and the court should not exercise that discretion
unless the error seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” Id. at 732 (quoting
1776 UNITED STATES v. BARSUMYAN
United States v. Young, 470 U.S. 1, 15 (1985)) (quotation
marks omitted). If our court holds that imposition of a condi-
tion of supervised release is plainly erroneous, we remand to
the district court for resentencing on an open record. United
States v. Abbouchi, 502 F.3d 850, 858-59 (9th Cir. 2007).
1. Computer Restriction
[9] Barsumyan first challenges Condition #5, the prohibi-
tion on “access[ing] or possess[ing] any computer or
computer-related devices in any manner, or for any purpose.”
The record does not indicate what the district court might
have meant by “computer-related devices,” and given the cat-
egorical language involved (“in any manner”),8 one can only
speculate as to the outer limits of this proscription—cellular
phones? ATMs? Driving a modern car? Checking out grocer-
ies using a bar code scanner?
We confronted a similar condition in United States v. Sales,
476 F.3d 732 (9th Cir. 2007).9 In Sales, the defendant had
been convicted of using his personal computer (including
scanner and printer) to make counterfeit $20 bills. Id. at 734.
The court rejected the condition forbidding access, however,
stating that “[t]he breadth of condition #5 is not reasonably
related to the nature and circumstances of Sales’s counterfeit-
8
It is unclear whether “in any manner” is meant to refer to manners of
devices or manners of accessing or possessing them. Either interpretation
would make the condition sweeping in the extreme.
9
Indeed, the prohibition in Sales was more specific, namely:
Computers and computer-related devices include, but are not lim-
ited to, personal computers, personal data assistants (PDAs),
internet appliances, electronic games, and cellular telephones, as
well as their peripherial equipment, that can access, or be modi-
fied to access, the internet, electronic bulletin boards, and other
computers, or similar media[.]
476 F.3d at 734. The focus of the prohibition in Sales reflected a concern
more with computer connectivity than with computers per se. No such
limitation is present here.
UNITED STATES v. BARSUMYAN 1777
ing offense or Sales’s history and characteristics.” Id. at 736.
Rather, the condition “results in a far greater deprivation of
Sales’s liberty than is reasonably necessary to prevent recidi-
vism, protect the public, or promote any form of rehabilita-
tion.” Id.
[10] If anything, Condition #5 here is even less appropriate
than the condition in Sales. In Sales, the defendant had actu-
ally used a computer in the commission of his crime. By con-
trast, while a computer is required to download the credit card
numbers that a skimming device has skimmed, there is no
indication that Barsumyan was going to be the one to do the
downloading. Barsumyan was “an intermediary,” who told
the Secret Service Agent that he knew “two individuals who
would be able to produce” cards from the numbers provided
on the skimmer.
[11] The government’s attempts to distinguish Sales are
unconvincing. First, it notes that the defendant in Sales had no
prior criminal convictions, 476 F.3d at 734, while Barsumyan
has several, including another one for credit card forgery.10
But there is no indication that Barsumyan used a computer in
any of those crimes either. Even if he had, however, Sales is
clear that a mere nexus between the crime and a computer
does not justify proscribing the use of anything containing a
circuit board or microchips.11
10
The other convictions are for petty theft, vandalism, and speeding.
11
When this court has upheld conditions restricting Internet access in
cases involving child pornography, it has done so citing the “ ‘strong link
between child pornography and the Internet, and the need to protect the
public, particularly children, from sex offenders.’ ” United States v. Rear-
den, 349 F.3d 608, 621 (9th Cir. 2003) (quoting United States v. Zinn, 321
F.3d 1084, 1093 (11th Cir. 2003). We are aware of no published cases
approving Internet restrictions imposed on a defendant convicted of a non-
sexual offense—let alone a restriction on all computer-related devices,
whether Internet-capable or not.
1778 UNITED STATES v. BARSUMYAN
Second, Barsumyan’s statement to the Secret Service Agent
that he “was interested in making money by committing dif-
ferent types of credit card fraud,” does not justify such a
sweeping and indefinite condition. Perhaps Barsumyan’s
statement refers to different ways of obtaining credit card
numbers, or different ways to exploit the numbers. We can
only speculate, and that speculation does not make the condi-
tion any more “reasonably necessary” to prevent further
crimes.12
[12] Having determined that it was error to impose Condi-
tion #5, we further hold that the error was plain. Sales struck
down a more defined condition on facts that would make a
ban on computer access more appropriate than in this case. Cf.
Abbouchi, 502 F.3d at 858 (finding plain error where the
“only evidence considered by the district court to support” a
domestic violence treatment program condition “was a para-
graph in the Presentence Report suggesting ‘strains’ in
Abbouchi’s relationship with his wife and that he and his wife
had separated”). The record in this case shows no attempt, by
either the Probation Officer or sentencing court, to justify this
sweeping condition. Had either attempted one, the error
would have become apparent.
Condition #5 affected Barsumyan’s “substantial rights.”
See Olano, 507 U.S. at 734 (holding that error affects substan-
tial rights when it “affect[s] the outcome of the district court
proceeding”); Abbouchi, 502 F.3d at 858 (holding that impo-
sition of a sentencing condition affects defendant’s substantial
rights); accord United States v. Dozier, 119 F.3d 239, 244 (3d
Cir. 1997)(same). Similarly, Abbouchi held that erroneous
imposition of a sentencing condition without adequate justifi-
cation “seriously affect[ed] the fairness . . . of [the] judicial
12
Unless “computer-related devices” encompasses skimmers (it might
not have under the definition in Sales because the skimmers cannot access
the Internet), Condition #5 would not have prevented the crime of which
Barsumyan was convicted.
UNITED STATES v. BARSUMYAN 1779
proceedings.” 502 F.3d at 858 (quoting United States v. Jor-
dan, 256 F.3d 922, 926 (9th Cir. 2001)) (quotation marks
omitted).
[13] The government contends that Barsumyan’s “substan-
tial rights” were not affected because, as an alien, he “is likely
to be removed/deported from the United States and never sub-
ject to supervision.” It is thus highly unlikely that he will ever
be subject to the computer condition that he now challenges.13
In United States v. Rodriguez-Rodriguez, this court rejected a
similar argument made on ripeness grounds, holding that a
defendant may “assert[ ] a facial challenge to a condition
imposed upon him at the time of his sentence,” notwithstand-
ing that several contingencies might have to occur before he
could be punished for its violation. 441 F.3d 767, 771-72 (9th
Cir. 2006). The government’s argument here is effectively the
converse, i.e., that the challenge is moot because several con-
tingencies must not occur for Barsumyan to be affected. This
argument is equally unavailing. The probability that the
defendant will actually be subject to the condition is irrelevant
to the determination of “substantial rights” in the plain error
context, which equates “substantial rights” with legal preju-
dice. Olano, 507 U.S. at 734 (“It must have affected the out-
come of the district court proceedings.”). Since the condition
would not have been imposed had the error not occurred, it
necessarily affected substantial rights.
In a similar vein, the government contends that Barsumy-
an’s likely removal means we ought to decline to exercise our
discretion to consider the plain error under Rule 52(b).14 Even
if removal is “likely,” however, it is not certain, and we are
13
We express no opinion as to Barsumyan’s actual removability, and
assume, arguendo, (1) that immigration proceedings will rule Barsumyan
to be removable and (2) that it is likely that he will actually be deported.
14
Federal Rule of Criminal Procedure 52(b) states that “[a] plain error
that affects substantial rights may be considered even though it was not
brought to the court’s attention.” (Emphasis added).
1780 UNITED STATES v. BARSUMYAN
unwilling to speculate whether such a sweeping and inappro-
priate condition will actually be enforced. Neither does the
prospect of Barsumyan’s future removal mean that the error
has not already “seriously affect[ed] the fairness, integrity or
public reputation of judicial proceedings,” requiring our cor-
rection. Olano, 507 U.S. at 732.
[14] We therefore vacate Condition #5 and remand for the
district court to impose a computer-related restriction permit-
ted by this opinion.
2. Reporting Requirement
[15] Barsumyan also complains that Condition #3, requir-
ing that he report to the Probation Office upon reentry to the
United States, violates his Fifth Amendment right against
self-incrimination. He contends that to do so would be, in
effect, to report himself for the new crime of being found in
the country after deportation. See United States v. Pina-Jaime,
332 F.3d 609, 612 (9th Cir. 2003) (holding that an alien need
not have reentered the United States illegally to be convicted
of being “found in” the country illegally). As Barsumyan him-
self concedes, however, this court has ruled that an identical
reporting condition does not violate the Fifth Amendment.
See Rodriguez-Rodriguez, 441 F.3d at 772-73. The district
court did not err in imposing Condition #3 in this case.
Conclusion
We conclude that the district court did not abuse its discre-
tion in imposing a 21-month sentence. We further hold that
the district court plainly erred in imposing a restriction on all
computer use as a condition of supervised release, but did not
plainly err in requiring the defendant to report to the Proba-
tion Office upon reentry to the United States. The defendant’s
sentence is AFFIRMED IN PART, VACATED IN PART and
REMANDED.