United States v. Gregory Aguirre , 647 F. App'x 750 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 5 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10352
Plaintiff - Appellee, D.C. No. 2:10-cr-00445-MCE-1
v.
MEMORANDUM*
GREGORY PAUL AGUIRRE,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted March 17, 2016
San Francisco, California
Before: NOONAN, GOULD, and FRIEDLAND, Circuit Judges.
Gregory Paul Aguirre pled guilty to and was convicted of distribution of
child pornography. The district court sentenced Aguirre to a within-Guidelines
sentence of 188 months in prison, plus 120 months of supervised release. Aguirre
argues on appeal that the 188-month term of imprisonment is substantively
unreasonable, and that two special conditions of supervised release should be
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
vacated. We affirm in part and vacate and remand in part.
As to the term of imprisonment, Aguirre does not dispute that the Guidelines
range was correctly calculated, nor does he argue that there was anything atypical
about his case that should take it out of the Guidelines range. Instead, he argues
that the Guidelines are themselves substantively unreasonable in light of a recent
Sentencing Commission Report criticizing certain child pornography sentencing
enhancements. See United States Sentencing Comm’n, Report to Congress:
Federal Child Pornography Offenses (Dec. 2012) (the “Commission Report”),
available at http://www.ussc.gov/sites/default/files/pdf/news/congressional-
testimony-and-reports/sex-offense-topics/201212-federal-child-pornography-
offenses/Full_Report_to_Congress.pdf.
Although a district court “may vary from the child pornography Guidelines
. . . based on policy disagreement with them, and not simply based on an
individualized determination that they yield an excessive sentence in a particular
case. . . . district courts are not obligated to vary from the child pornography
Guidelines on policy grounds if they do not have, in fact, a policy disagreement
with them.” United States v. Henderson, 649 F.3d 955, 953-64 (9th Cir. 2011).
Here, the district court considered the Commission Report but it concluded that a
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Guidelines sentence was appropriate in this case. The district court was under no
obligation to concur with the Commission Report’s criticisms and prescriptions
and did not err in applying the Guidelines in their current form.1 We thus affirm
the length of Aguirre’s prison sentence.
Aguirre’s challenge to condition of supervised release number nine also
fails. As an initial matter, both parties agree that, despite its reference to
“‘[s]exually explicit conduct’ as defined in 18 U.S.C. section 2256(2),” the
condition is appropriately limited to pornography. Therefore, to bring the
condition into accordance with United States v. Gnirke, 775 F.3d 1155 (9th Cir.
2015), we construe the condition to apply “(1) to any materials with depictions of
‘sexually explicit conduct’ involving children, as defined by 18 U.S.C. § 2256(2),
and (2) to any materials with depictions of ‘sexually explicit conduct’ involving
adults, defined as explicit sexually stimulating depictions of adult sexual conduct
that are deemed inappropriate by [Aguirre’s] probation officer. [Aguirre] may not
possess, [own, use, view, or read] such materials, nor may he patronize any place
where such materials or entertainment are available.” Gnirke, 775 F.3d at 1166.
1
Aguirre has not claimed any procedural error.
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Once so defined, we conclude that the district court did not abuse its
discretion in finding that the condition is “reasonably related to the goal[s] of
deterrence, protection of the public, or rehabilitation of the offender,” United
States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (alteration in original)
(quoting United States v. Collins, 684 F.3d 873, 892 (9th Cir. 2012), and does not
“infringe[] more on the offender’s liberty than is ‘reasonably necessary’ to
accomplish these statutory goals,” id. (quoting 18 U.S.C. § 3583(d)(2)); see also
United States v. Daniels, 541 F.3d 915, 927-28 (9th Cir. 2008); United States v.
Rearden, 349 F.3d 608, 619 (9th Cir. 2003).2
Finally, with regard to condition of supervised release number ten, we first
note that the parties have agreed that “business records” refers only to business
phone records, not business records generally. The condition shall be so
2
Although Daniels and Rearden were on plain error review, the only issue
objected to by Aguirre with respect to condition nine was the scope of the
restriction—an objection cured by our construing the condition consistent with
Gnirke. Aguirre did not object that, even as narrowed, the condition failed to
further the purposes of supervised release. This case is thus in a similar posture
with respect to that issue as were Daniels and Rearden, even though the
government failed to point this out. See United States v. Murguia-Rodriguez, –
No. 14-10400, 2016 WL 791241, at *6, *6 n.9 (Mar. 1, 2016) (a panel may apply
plain error review even when the government has failed to assert that the error in
question has not been preserved).
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construed.
We otherwise agree with Aguirre that, as a procedural matter, the portion of
condition number ten regarding the monitoring of “all outgoing or incoming phone
calls,” finds no justification in the record and must be vacated. See Collins, 684
F.3d at 890 (“the district court ‘need not state at sentencing the reasons for
imposing each condition of supervised release,’ [but] that is only true ‘if the
reasoning is apparent from the record’” (alteration omitted) (citation omitted)
(quoting United States v. Rudd, 662 F.3d 1257, 1260 (9th Cir. 2011)). Although
at oral argument the Government provided several possible reasons why such a
condition is necessary, the record is devoid of any indication that the district court
considered these—or any other justifications—for the condition. We therefore
remand for reconsideration this portion of the condition.
Aguirre’s request that the case be assigned to a different district judge on
remand is denied.
AFFIRMED IN PART; VACATED AND REMANDED IN PART.
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