United States v. Joseph Scanio ( 2012 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 22 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 11-10659
Plaintiff - Appellee, D.C. No. 2:06-cr-00434-MCE-1
v.
MEMORANDUM*
JOSEPH JOHN GEORGE SCANIO,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Submitted October 17, 2012**
San Francisco, California
Before: BEA and HURWITZ, Circuit Judges, and SESSIONS, District Judge.***
After pleading guilty to possessing child pornography, Joseph Scanio was
sentenced to a prison term and eight subsequent years of supervised release. The
*
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).
***
The Honorable William K. Sessions, III, United States District Judge
for the District of Vermont, sitting by designation.
conditions of release provided that, absent permission from his probation officer,
Scanio could not associate with known felons or engage in contact with minors.
After an evidentiary hearing, the district court held that Scanio had violated the
terms of his release. The court revoked the release and sentenced Scanio to six
months in prison, to be followed by eighty-seven months of supervised release.
Scanio argues that the district court erred in finding that he had unauthorized
contact with minors and associated with known felons. He also challenges the six
month prison term. We affirm.
1. Scanio admittedly attended a party at a skating rink together with a number
of children. Scanio chose to be in the close presence of these children, and therefore
engaged in “contact” with them. See United States v. Musso, 643 F.3d 566, 571 (7th
Cir. 2011); United States v. Johnson, 446 F.3d 272, 281 (2d Cir. 2006). His probation
officer did not grant Scanio permission to attend this party. The officer’s failure to
object to Scanio driving his daughter to skating practice was not blanket permission
to attend all events involving children at the rink.
2. Scanio admitted that he repeatedly corresponded with persons he knew to
be imprisoned felons. That correspondence constitutes forbidden association. United
States v. King, 608 F.3d 1122, 1128 (9th Cir. 2010).
3. The district court did not abuse its discretion by revoking supervised release
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and imposing a six month prison term. The court expressly considered the factors in
18 U.S.C. § 3553(a) in imposing the sentence, which was in the middle of the
applicable Guidelines range.
AFFIRMED.
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