United States v. Steven Prowler ( 2011 )

FILED
NOT FOR PUBLICATION DEC 23 2011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. 10-50379
Plaintiff - Appellee, D.C. No. 2:06-cr-00391-CBM-1
v.
MEMORANDUM *
STEVEN ERIK PROWLER,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, Senior District Judge, Presiding
Argued and Submitted December 7, 2011
Pasadena, California
Before: PREGERSON and PAEZ, Circuit Judges, and CONLON,** District Judge.
Defendant Steven Prowler appeals the district court’s sentence of 300
months in custody and a lifetime of supervised release with multiple conditions.
We affirm the custodial sentence as free from procedural error and substantively
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Suzanne B. Conlon, District Judge for the United
States District Court for the Northern District of Illinois, sitting by designation.
reasonable, and affirm the fourth, fifteenth and seventeenth conditions of
supervised release. We vacate the fifth and ninth conditions of supervised release
and remand so that the district court may conform them to its oral pronouncement
of sentence.
The reasonableness of a sentence is reviewed for abuse of discretion. United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). When reviewing the
reasonableness of a sentencing decision, we consider (1) whether there was
procedural error and (2) whether the sentence is substantively reasonable. Id.The district court did not commit procedural error by considering Prowler’s
diary, the victim impact statements, Prowler’s admissions to the charged conduct
as well as related conduct, or the nature of his charges. See id. (describing types of
procedural error in sentencing). Prowler contends that the district court considered
these matters as aggravating factors when they were actually mitigating
circumstances or previously factored into the Sentencing Guidelines calculation.
Prowler is incorrect. The district court referred only to the diary and the victim
impact statements as “aggravating” factors, but it was the contents of those
documents that the court considered aggravating. Prowler’s admissions to the
charged conduct and additional related conduct was not described as an
aggravating factor, and the court’s consideration of his admission was not error.
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Finally, Prowler’s objection to the district court’s consideration of the nature of the
charges is based on a misunderstanding of relevant Supreme Court precedent.
Spears v. United States, 555 U.S. 261, 264 (2009) (affirming that district courts
may vary from the Guidelines “based on an individualized determination that they
yield an excessive sentence in a particular case”).
The district court’s 300-month sentence was substantively reasonable.
Review of a sentence for substantive reasonableness requires examination of the
length of the sentence in the context of the facts of the case and the factors that
must be considered under 18 U.S.C. § 3553(a). United States v. Dewey, 599 F.3d
1010, 1016 (9th Cir. 2010). Prowler provides no convincing argument as to why
his 300-month sentence is unreasonable in light of the facts and circumstances of
his particular case.
Conditions of supervised release that Prowler failed to object to before the
district court are reviewed for plain error. See United States v. Goddard, 537 F.3d
1087, 1089 (9th Cir. 2008).
There is no plain error in the district court’s fourth condition of supervised
release. The definition of “computers and computer-related devices” is not
overbroad. The definition is “reasonably related” to the permissible § 3553(a) goal
of protection of the public, because it focuses on limiting Prowler’s access to the
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Internet. Goddard, 537 F.3d at 1089-90 (citing United States v. Rearden, 349 F.3d
608, 614, 620-22 (9th Cir. 2003)); see also Rearden, 349 F.3d at 621. Moreover, it
is not a greater than necessary deprivation of Prowler’s liberty. See Goddard, 537
F.3d at 1089-90 n.2 (affirming a definition nearly identical to that in the fourth
supervised release condition).
There is equally no plain error in the district court’s fifteenth and
seventeenth conditions of supervised release. Although the district court erred in
not conducting the proper preliminary inquiry required by U.S.S.G. § 5F1.5(a)
before imposing these occupational restrictions, there was no prejudicial effect and
therefore no plain error.
The district court added language to supervised release conditions five and
nine in its written judgment that differed from the conditions imposed in the oral
pronouncement of sentence. “In cases where there is a direct conflict between an
unambiguous oral pronouncement of sentence and the written judgment and
commitment, this [c]ourt has uniformly held that the oral pronouncement, as
correctly reported, must control.” United States v. Allen, 157 F.3d 661, 668 (9th
Cir. 1998) (alteration in original) (internal quotation marks and citation omitted).
We therefore vacate supervised release conditions five and nine and remand to the
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district court to conform the written judgment to its oral pronouncement of
sentence.
AFFIRMED in part, VACATED in part and REMANDED.
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