United States v. Joseph Anthony ( 2011 )


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  •                                                                            FILED
    NOT FOR PUBLICATION
    FEB 15 2011
    UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
    U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                     No. 10-30037
    Plaintiff - Appellee,    D.C. No. CR-08-126-BLG-RFC
    *
    vs.                                         MEMORANDUM
    JOSEPH EMORY ANTHONY,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the District of Montana
    Richard F. Cebull, District Judge, Presiding
    Submitted January 10, 2011 **
    Seattle, Washington
    Before: GRABER and M. SMITH, Circuit Judges, and BENITEZ,*** District
    Judge.
    Defendant Joseph Emory Anthony appeals the 235-month custodial sentence
    and conditions of supervised release imposed for Possession of Child Pornography,
    *
    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. Fed. R. App. P. 34(a)(2).
    ***
    The Honorable Roger T. Benitez, United States District Judge for the
    Southern District of California, sitting by designation.
    in violation of 18 U.S.C. § 2252A(a)(5)(b). We have jurisdiction over the matter
    pursuant to 
    28 U.S.C. § 1291
     and 
    18 U.S.C. § 3742
    . We vacate two special
    conditions of supervised release and remand for reimposition of conditions but
    affirm the sentence in all other respects.
    Anthony contends that the government breached the plea agreement by not
    recommending a lower sentence. However, the district court rejected the plea
    agreement at the outset of the sentencing hearing. Before counsel for the
    government spoke, the court announced that the plea agreement was being rejected
    and notified Anthony that the sentencing range contained in the plea agreement
    was too lenient. Following the requirements of Federal Rule of Criminal
    Procedure 11(c)(5), the court then gave Anthony the opportunity to withdraw his
    guilty plea. When Anthony decided to persist in his guilty plea, the government
    was no longer bound by the rejected plea agreement. See United States v.
    Kuchinski, 
    469 F.3d 853
    , 858 (9th Cir. 2006). Therefore, there was no breach of
    the plea agreement.
    Anthony contends that his 235-month sentence is substantively
    unreasonable. When reviewing a sentencing decision, we first review the
    determination for procedural error, and then address the substantive reasonableness
    of a sentence. United States v. Carty, 
    520 F.3d 984
    , 993 (9th Cir. 2008) (en banc).
    2
    Here, the sentencing court began by resolving objections to the pre-sentence report
    and correctly calculating the Sentencing Guidelines range. It then addressed the
    facts of the case and explained the sentence selected based on the sentencing
    factors listed in 
    18 U.S.C. § 3553
    (a). There was no procedural error.
    The sentence was within the correctly calculated Sentencing Guidelines
    range and below the statutory maximum sentence of twenty years. “[W]hen the
    judge’s discretionary decision accords with the [Sentencing] Commission’s view
    of the appropriate application of § 3553(a) in the mine run of cases, it is probable
    that the sentence is reasonable.” Rita v. United States, 
    551 U.S. 338
    , 351 (2007);
    see Carty, 
    520 F.3d at 994
     (adopting this standard). In light of the totality of the
    circumstances, given the sentencing court’s thorough explanation of the sentencing
    factors and the danger Anthony posed to the community, we cannot say that the
    sentence was substantively unreasonable. United States v. Blinkinsop, 
    606 F.3d 1110
    , 1116 (9th Cir. 2010).
    Lastly, Anthony challenges as overbroad two special conditions of his
    supervised release. Special Condition No. 7 prohibits possession and use of any
    computer or electronic device that can provide access to the internet. The
    government concedes that this condition is overbroad in light of United States v.
    Riley, 
    576 F.3d 1046
    , 1050 (9th Cir. 2009), and we agree.
    3
    Special Condition No. 15 is likewise overbroad and requires Anthony to
    abstain from consuming or possessing alcohol and to avoid establishments where
    alcohol is the primary item of sale. Alcohol played no part in the offense of
    conviction and the nexus is slight between Anthony’s possession of alcohol and his
    past criminal conduct. Given the facts in the record, Special Condition No. 15 is
    not narrowly tailored and imposes a greater deprivation of liberty than is
    reasonably necessary for the purposes of supervised release described in 
    18 U.S.C. § 3583
    (d). Riley, 
    576 F.3d at 1048
    .
    Conditions of release VACATED and REMANDED for reimposition of
    special conditions of release. AFFIRMED in all other respects.
    4
    

Document Info

Docket Number: 10-30037

Judges: Graber, Smith, Benitez

Filed Date: 2/15/2011

Precedential Status: Non-Precedential

Modified Date: 11/5/2024