United States v. Michael Yellow , 696 F. App'x 306 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-10251
Plaintiff-Appellee, D.C. No.
3:11-cr-08173-NVW-1
v.
MICHAEL EARL YELLOW, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Submitted August 11, 2017
Pasadena, California
Before: FARRIS, CALLAHAN, and OWENS, Circuit Judges.
Michael Yellow appeals the district court’s imposition of a ten-year term of
supervised release with special conditions relating to a 1993 sex offense
conviction, a 2011 conviction for failure to register as a sex offender, and
subsequent supervised release violations. We review sentencing decisions,
including the reasonableness of special conditions, for abuse of discretion, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
whether a particular condition of supervised release violates the Constitution de
novo. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc); United
States v. Aquino, 794 F.3d 1033, 1036 (9th Cir. 2015). We have jurisdiction under
28 U.S.C. § 1291, and we affirm.
1. The district court did not abuse its discretion in imposing a ten-year
supervised release sentence. It rationally and meaningfully considered all of the
relevant 18 U.S.C. § 3553(a) sentencing factors and fully explained how those
factors justify a ten-year sentence. See United States v. Miqbel, 444 F.3d 1173,
1177 (9th Cir. 2006); United States v. Rudd, 662 F.3d 1257, 1261 (9th Cir. 2011).
The court explained the sentence was justified “partly because of the nature of the
underlying offenses”—a child sex offense and failure to register offense—as well
as Yellow’s need to complete sex offender treatment. The court also noted
Yellow’s failure to report his whereabouts was a “very, very serious” supervised
release violation in light of his repeated failures to comply with supervised release
obligations. Finally, the court justified the sentence by pointing to Yellow’s
violation of the court’s trust. There was no procedural error or substantive
unreasonableness in the sentence the district court imposed.
2. Likewise, the district court did not abuse its discretion in imposing
special conditions including sex offender treatment, polygraph testing, a
pornography restriction, an occupational restriction, and a provision prohibiting
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knowing contact with minors. The court rationally and meaningfully considered
the § 3553(a) factors, and reasonably concluded those conditions were necessary to
protect the public and rehabilitate Yellow. Nothing in the record suggests the
conditions involve a greater deprivation of liberty than necessary. Cf. United
States v. Wolf Child, 699 F.3d 1082, 1092, 1096–97 (9th Cir. 2012).
3. The special condition prohibiting knowing contact with minors is not
unconstitutionally vague. People of common intelligence need not “necessarily
guess at” the meaning of “knowing contact” or “knowingly in the company of,”
and known minors is a clearly defined and unambiguous group. See United States
v. Soltero, 510 F.3d 858, 866 (9th Cir. 2007) (citation omitted); United States v.
King, 608 F.3d 1122, 1128 (9th Cir. 2010).
AFFIRMED.
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