United States v. Rudd, 10–50254.

• Decision Date: 23 November 2011
• Docket Number: No. 10–50254.,10–50254.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. William Newton RUDD, Defendant–Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 14,195

2011 Daily Journal D.A.R. 16,959

662 F.3d 1257

UNITED STATES of America, Plaintiff–Appellee,

v.William Newton RUDD, Defendant–Appellant.

No. 10–50254.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 5, 2011.Filed Nov. 23, 2011.

André Birotte Jr., United States Attorney, and Dennise D. Willett and Anne C. Gannon, Assistant United States Attorneys, Santa Ana, CA, Jean-Claude Andre, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee United States of America.

Sean K. Kennedy, Federal Public Defender, and Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant William Newton Rudd.

Appeal from the United States District Court for the Central District of California, Alicemarie H. Stotler, Senior District Judge, Presiding. D.C. No. 8:07–cr–00163–AHS–1.Before: KIM McLANE WARDLAW and MARSHA S. BERZON, Circuit Judges, and RONALD M. WHYTE, Senior District Judge.^*

OPINION

WARDLAW, Circuit Judge:

William Newton Rudd appeals the district court's imposition of a residency restriction as a special condition of supervised release, following his conviction and sentencing for one count of violating 18 U.S.C. § 2423(c), which prohibits U.S. citizens from traveling to a foreign country and engaging in illicit sexual conduct. The special condition prohibits Rudd from residing “within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18.” We have jurisdiction pursuant to 18 U.S.C. § 3742. Because the district court did not provide any explanation for its imposition of the 2,000 foot residency restriction, and none is apparent from the record, the district court committed procedural error. Thus, we vacate the special condition and remand to the district court to explain or reconsider the 2,000 foot residency restriction.

I.

In 2004, Rudd was employed as a contractor for the United States Agency for International Development (USAID) in Bangladesh. The Immigration and Customs Enforcement (ICE) attaché in Singapore received a report that Rudd was engaging in sexual conduct with boys of primary school-age in Bangladesh. Based on this report, the Bangladesh National Police (BNP) executed a search warrant at Rudd's hotel room in June 2004. Ultimately, the police unearthed evidence that Rudd had engaged in sexual conduct with four primary school-age boys between 2002 and 2004.

In October 2009, pursuant to a written plea agreement, binding under Federal Rule of Criminal Procedure 11(c)(1)(C), if accepted by the court, Rudd pleaded guilty to one count of engaging in illicit sexual conduct in foreign places in violation of 18 U.S.C. § 2423(c). Rudd and the government agreed that a sentence of seventy-eight months imprisonment was appropriate. The government proposed a fifteen-year term of supervised release, but there was ultimately no agreement on the length of supervised release. Rudd acquiesced to the imposition of the general conditions and fourteen additional special conditions of supervised release by waiving his right to appeal those conditions. These special conditions included prohibitions against frequenting or loitering within 100 feet and residing “within direct view of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18.” In the plea agreement, Rudd expressly preserved his right to appeal any special condition of supervised release not listed in the agreement.

In its presentence investigative report (PSR) and letter, the Probation Office recommended several additional terms and conditions of supervised release, including the condition at the heart of this appeal:

17. The defendant shall not reside within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or other places primarily used by persons under the age of 18. The defendant's residence shall be approved by the Probation Officer, and any change in residence must be pre-approved by the Probation Officer. The defendant shall submit the address of the proposed residence to the Probation Officer at least 10 days prior to any scheduled move.

In his sentencing memorandum, Rudd objected to the Probation Office's “recommendations for the terms and conditions of supervised release,” requesting instead that “the Court ... adopt the terms and conditions and language of the plea agreement,” which were “carefully negotiated between the parties and are consistent with the intent and purpose of protecting the public.”

The district court accepted the Rule 11(c)(1)(C) plea agreement in its tentative sentencing ruling, but overruled Rudd's objections. The district judge found only “two significant conditions recommended by the Probation Office that are absent from the plea agreement,” conditions that she determined to be “warranted under the facts of this case”: “(1) forbidding contact with the victim and (2) forbidding international travel.” In contrast, the district judge found all other recommendations by the Probation Office that diverged from the plea agreement to constitute only “minor variations” from the agreement. The district court sentenced Rudd to seventy-eight months imprisonment and ten years of supervised release, adopting all of the Probation Office's recommended terms and conditions, including the 2,000 foot residency restriction.

II.

We review a district court's decision to impose a particular condition of supervised release for abuse of discretion. United States v. Lakatos, 241 F.3d 690, 692 (9th Cir.2001). The burden of establishing the necessity of any condition falls on the government. United States v. Weber, 451 F.3d 552, 558–59 (9th Cir.2006).

The government contends that we must review the district court's imposition of the 2,000 foot restriction for plain error, arguing that Rudd “never objected to the condition at all.” However, the government entered into a binding plea agreement with Rudd, in which he expressly preserved his right to appeal any special condition not listed in the plea agreement. Moreover, the government's argument fails to acknowledge that Rudd's sentencing memorandum specifically stated that he objected to the terms and conditions recommended by the Probation Office. Rudd not only objected but requested the Court to “adopt the terms and conditions and language of the plea agreement.”

Having both preserved his right to appeal in the binding plea agreement accepted by the court and restated his objection to the different conditions recommended by the Probation Office in his sentencing memorandum, it was both unnecessary and futile for Rudd to further object. United States v. Autery, 555 F.3d 864, 871 (9th Cir.2009) (holding that where “the court is already apprised of the parties' positions and what sentences the parties believe are appropriate ..., requiring the parties to restate their views after sentencing would be both redundant and futile, and would not ‘further the sentencing process in any meaningful way,’ ” and thus reviewing the sentence for abuse of discretion) (internal citations omitted).¹

III.

In reviewing sentences, we first consider whether the district court committed procedural error. United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc). “It would be procedural error ... to fail adequately to explain the sentence selected....” Id. A sentencing judge must explain a sentence sufficiently to communicate “that a reasoned decision has been made” and “permit meaningful appellate review.” Id. at 992. However, we have held that the district court “need not state at sentencing the reasons for imposing each condition of supervised release, if it is apparent from the record.

” United States v. Blinkinsop, 606 F.3d 1110, 1119 (9th Cir.2010) (emphasis in original) (vacating and remanding condition of supervised release under plain error review to allow the district court to consider arguments raised by defendant on appeal); see also Carty, 520 F.3d at 992 (holding that an explanation “in some cases may also be inferred from the PSR or the record as a whole”); United States v. Daniels, 541 F.3d 915, 924 (9th Cir.2008) (“[A] sentencing judge is not required to articulate on the record at sentencing the reasons for imposing each condition of supervised release, where we can determine from the record whether the court [erred]”).

We then turn to review the substantive reasonableness of the sentence. In making that determination, we must consider “the totality of the circumstances.” Carty, 520 F.3d at 993. “A substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish § 3553(a)(2)'s sentencing goals.” United States v. Crowe, 563 F.3d 969, 977 n. 16 (9th Cir.2009) (quoting 18 U.S.C. § 3553(a)). “[T]he touchstone of ‘reasonableness' is whether the record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Tomko, 562 F.3d 558, 568 (3d Cir.2009) (quoting United States v. Grier, 475 F.3d 556, 571 (3d Cir.2007) (en banc)); see also United States v. Ellis, 641 F.3d 411, 423 (9th Cir.2011).

IV.

The district court committed procedural error by failing to explain why it imposed the 2,000 foot residency restriction, rather than the much less restrictive residency condition specified in the plea agreement.² The reasons for its decision to impose the 2,000 foot residency restriction as a condition of Rudd's supervised release are neither explained in, nor apparent from, the record.

The district court addressed Rudd's objection to the Probation Office's recommended terms and conditions in its tentative ruling, noting that “Defendant urges adoption of the terms and conditions for defendant's supervised release contained...