United States v. James Cuneo ( 2012 )

FILED
NOT FOR PUBLICATION APR 10 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30076
Plaintiff - Appellee, D.C. No. 6:09-cr-60060-AA-1
v.
MEMORANDUM *
JAMES TRACY CUNEO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Submitted March 5, 2012 **
Portland, Oregon
Before: W. FLETCHER, FISHER, and BYBEE, Circuit Judges.
Defendant-appellant James Cuneo appeals the district court’s revocation of
his probation and its imposition or maintenance of two conditions of his supervised
release.
*
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 district court has broad discretion to revoke probation, and such
decisions are reviewed only for an abuse of discretion.” United States v. Daly, 839
F.2d 598, 599 (9th Cir. 1988). Cuneo’s probation was subject to the special
condition that he submit to a computer search “at a reasonable time and in a
reasonable manner.” The conditions for the search set by the probation officer
were reasonable and properly within his discretion, see United States v. Stephens,
424 F.3d 876, 880 (9th Cir. 2005), and thus the district court’s revocation of
Cuneo’s probation for failure to abide by them was not an abuse of discretion.
This court “review[s] conditions of supervised release for abuse of
discretion,” and the petitioner “bears the burden of showing that the [conditions of
supervised release] set by the district court involve[] a greater deprivation of
liberty than is reasonably required.” United States v. Jeremiah, 493 F.3d 1042,
1046–47 (9th Cir. 2007). The district court’s refusal to permit Cuneo to use
marijuana was not an abuse of discretion. See 18 U.S.C. § 3583(d). The district
court’s imposition of a condition requiring that Cuneo participate in a program for
monitoring his computer use connected to the Internet, as described in its oral
order of March 16, 2011, was also not an abuse of discretion. The court related the
condition to the purposes of supervised release, and the condition is not a greater
deprivation of liberty than is reasonably necessary. See United States v. Quinzon,
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643 F.3d 1266, 1271–73 (9th Cir. 2011); United States v. Goddard, 537 F.3d 1087,
1089–90 (9th Cir. 2008). The district court’s written order of March 30, 2011,
however, differs from its oral order in that it places no limitations on the computer
monitoring to which Cuneo must submit. We vacate the computer monitoring
condition described in that written order and remand for the limited purpose of
allowing the district court to conform the written order describing the computer
monitoring condition to its prior oral order.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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