United States v. Craig Carr , 463 F. App'x 639 ( 2011 )

FILED
NOT FOR PUBLICATION DEC 22 2011
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. 10-30371
Plaintiff - Appellee, D.C. No. 2:10-cr-00222-RAJ-1
v.
MEMORANDUM *
CRAIG THOMAS CARR,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted December 19, 2011 **
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Craig T. Carr appeals from the sentence imposed following his guilty plea to
one count of sexual exploitation of a child in violation of 18 U.S.C. §§ 2251(c)(1)
and (c)(2)(A). We have jurisdiction under 28 U.S.C. § 1291. The matter is ripe for
review. See United States v. Rodriguez-Rodriguez, 441 F.3d 767, 771–72 (9th Cir.
*
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).
2006); United States v. Williams, 356 F.3d 1045, 1051 (9th Cir. 2004). We dismiss
the appeal.
Whether a defendant has waived the right to appeal is a question of law
reviewed de novo. United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009). In
his plea agreement, Carr waived “to the full extent of the law” “[a]ny right . . . to
appeal the sentence” so long as the custodial sentence was “within or below the
Sentencing Guidelines range.” This waiver was effective as to the terms of
supervised release1 even if Carr failed to foresee that those terms may have
included plethysmograph testing.2
Carr argues that the waiver is inapplicable because the sentence was
unconstitutional in light of the district court’s failure to consult a psychologist or
plethysmography expert before issuing it and to adequately justify the
plethysmograph testing requirement on the record. We disagree. We need not
1
See Watson, 582 F.3d at 986 (stating that a waiver of “‘any aspect of
the sentence’ unambiguously encompassed supervised release terms.”).
2
United States v. Johnson, 67 F.3d 200, 203 (9th Cir. 1995); United
States v. Pacheco-Navarette, 432 F.3d 967, 971 (9th Cir. 2005); see also Watson,
582 F.3d at 986.
2
decide whether justification of plethysmograph testing is constitutionally required 3
because the district court gave sufficient on-the-record consideration to the
available alternatives4 and to “whether the testing is sufficiently likely to yield
useful results ‘given the defendant’s specific characteristics,’” 5 despite the fact that
it did not consult a psychologist or plethysmography expert in so doing.6
DISMISSED.
3
United States v. Weber, 451 F.3d 552, 563 n.14 (9th Cir. 2006);
United States v. Williams, 356 F.3d 1045, 1053 n.9 (9th Cir. 2004); United States
v. T.M., 330 F.3d 1235, 1241 n.6 (9th Cir. 2003); see also United States v. Rudd,
No.10-50254, __ F.3d __, 2011 WL 5865897, at *4–5 (9th Cir. Nov. 23, 2011).
4
See Weber, 451 F.3d at 568; see also United States v. Kennedy, 643
F.3d 1251, 1259 (9th Cir. 2011).
5
United States v. Cope, 527 F.3d 944, 954 (9th Cir. 2008); see also
Weber, 451 F.3d at 567, 569.
6
See Weber, 451 F.3d at 569.
3