United States v. Ronald Tsosie ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10090
Plaintiff-Appellee, D.C. No.
3:94-cr-00031-DGC-1
v.
RONALD LEE TSOSIE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted February 5, 2020**
Phoenix, Arizona
Before: GRABER, HURWITZ, and MILLER, Circuit Judges.
While on supervised release from a federal conviction, Ronald Tsosie was
convicted in Arizona state court of attempted sexual assault. After Tsosie completed
a four-year state sentence, the district court revoked supervised release and imposed
a 27-month term of imprisonment to be followed by 27 months of supervised release.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
See 18 U.S.C. § 3583(e). Tsosie challenges that sentence and argues that the district
court plainly erred in imposing a special condition of supervised release. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
1. Because Tsosie did not argue below that the district court “fail[ed] to
adequately address all of [his] arguments,” we review the sentence for plain error,
United States v. Rangel, 697 F.3d 795, 805 (9th Cir. 2012), and find none. Tsosie
has not “show[n] ‘a reasonable probability that he would have received a different
sentence’” had the district court explicitly considered whether he should receive a
reduced sentence because he lost the opportunity to serve his state and federal terms
concurrently. United States v. Hanson, 936 F.3d 876, 884 (9th Cir. 2019) (quoting
United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008)). The district court
emphasized that its sentence served to protect the public from any further crimes
Tsosie might commit. See 18 U.S.C. § 3553(a)(2)(C). It is therefore “highly
uncertain whether [Tsosie] would have received a lesser sentence.” United States v.
Christensen, 732 F.3d 1094, 1106 (9th Cir. 2013).
2. Special Condition 9 of supervised release authorizes the search of
Tsosie’s electronic devices in the lawful discharge of a probation officer’s
supervisory functions. Tsosie did not object to this condition below, but now argues
that the district court plainly erred by failing to “make[] a factual finding establishing
some nexus between [electronic device] use and one of the goals” of supervised
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release. United States v. Bare, 806 F.3d 1011, 1017 (9th Cir. 2015). The district
court did not commit plain error in adopting the probation officer’s justification for
the condition and finding it reasonably related to Tsosie’s rehabilitation. See United
States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003) (“The supervised release
conditions need not relate to the offense for which [the defendant] was convicted as
long as they satisfy any of the conditions set forth [in 18 U.S.C. §§ 3583(d)(1) and
3553(a)].”). Another special condition, not challenged on appeal, prohibits Tsosie
from possessing sexually explicit material. Special Condition 9 works in furtherance
of that condition.
AFFIRMED.
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