U.S. v. Apodaca

• Decision Date: 12 April 2011
• Docket Number: No. 09–50372.,09–50372.
• Citation: 641 F.3d 1077
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff–Appellee,v.Daniel APODACA, Defendant–Appellant.

641 F.3d 1077

11 Cal. Daily Op. Serv. 4338

2011 Daily Journal D.A.R. 5239

UNITED STATES of America, Plaintiff–Appellee,

v.Daniel APODACA, Defendant–Appellant.

No. 09–50372.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 5, 2010.Filed April 12, 2011.

Sean K. Kennedy, Federal Public Defender, and Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, for the appellant.Andre Birotte Jr., United States Attorney, Christine C. Ewell, Assistant United States Attorney, and Stephanie S. Christensen, Assistant United States Attorney, Los Angeles, CA, for the appellee.Appeal from the United States District Court for the Central District of California, Dean D. Pregerson, District Judge, Presiding. D.C. No. 2:08–cr–0793–DDP–1.Before: RICHARD D. CUDAHY,^* KIM McLANE WARDLAW and WILLIAM A. FLETCHER, Circuit Judges.

OPINION

CUDAHY, Circuit Judge:

Daniel Apodaca pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). The district court deviated downward from the United States Sentencing Guidelines' recommendation and sentenced Apodaca to two years imprisonment and lifetime supervised release. Apodaca appeals the supervised release portion of his sentence, arguing that its length was unreasonable and that one of the supervised release conditions violates his constitutional rights. We affirm.

I.

A. Jurisdiction and Standard of Review

We review the length of a term of supervised release for reasonableness. United States v. Daniels, 541 F.3d 915, 921 (9th Cir.2008). When reviewing a sentence for reasonableness, we “merely ask [ ] whether the trial court abused its discretion.” Rita v. United States, 551 U.S. 338, 351, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Similarly, this court reviews “a district court's determination of the appropriate supervised release conditions ... for abuse of discretion.” United States v. Weber, 451 F.3d 552, 557 (9th Cir.2006). We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

B. Factual and Procedural Background

In January 2008, the Los Angeles Police Department conducted an undercover, online investigation of individuals sharing child pornography over the internet. During the course of this investigation, a detective discovered that a computer owned by Daniel Apodaca contained a sizeable library of child pornography. On March 6, 2008, officers executed a federal search warrant at Apodaca's apartment. These officers seized Apodaca's laptop, which contained the pornographic materials the police had discovered earlier, and several compact discs, which contained further pornographic images and videos of children.

On July 23, 2008, Apodaca was arrested and charged with one count of violating 18 U.S.C. § 2252A(a)(5)(B), (b)(2) in the U.S. District Court for the Central District of California. The court released him on a $10,000 appearance bond and ordered that he comply with certain conditions of release. Apodaca fully complied with the terms of his release on bond.

On December 12, 2008, Apodaca appeared before the district court and pleaded guilty. He acknowledged that he had knowingly possessed child pornography, that he knew that the persons depicted in the pornography were minors and that some of the pornography depicted children engaged in sadistic or masochistic acts. At the plea hearing, the court ensured that Apodaca knew that the maximum penalty for his offense included a lifetime period of supervised release.

On July 10, 2009, the district court conducted Apodaca's sentencing hearing. The court began by making sure that it had received and reviewed all of the sentencing documents that the parties had filed. It went on to hear arguments from both parties concerning what punishment the court should impose on Apodaca. The court also heard Apodaca's allocution.

After acknowledging all of the information the parties had submitted, the court calculated an advisory offense level of 28 for Apodaca's conduct and a Criminal History Category of I. It went on to sentence Apodaca to 24 months imprisonment, a multiple-year downward deviation from the Guidelines-recommended sentence of 78 to 97 months. In deciding to depart downward, the court found that Apodaca's behavior fell on the low end of the spectrum of relevant criminal conduct and that he presented a low risk of recidivism.

The district court further ordered that, upon release from imprisonment, Apodaca would be placed on supervised release for the Guidelines-recommended term of life. While on supervised release, the court stated that Apodaca would have to comply with fifteen specific terms and conditions. Fourteen of these conditions were taken directly from the initial Presentence Report filed by Apodaca's Probation Officer, with minor modifications being incorporated to accommodate objections raised by Apodaca's counsel at the sentencing hearing. The fifteenth condition was first proposed in the United States' response to Apodaca's sentencing position and was adopted by the Probation Officer in her second addendum to her Presentence Report. This provision prohibited Apodaca from “associat[ing] or hav[ing] verbal, written, telephonic, or electronic communication with any person under the age of 18,” with limited exceptions. Finally, in response to Apodaca's concerns about the length of his term of supervised release, the sentencing judge indicated that he would not necessarily be opposed at a later time to shortening Apodaca's term of supervised release and included a statement in the sentencing order permitting Apodaca to request such relief later.

Apodaca appeals from the district court's sentencing order on two grounds. First, he claims that the imposition of lifetime supervised release was unreasonable. Second, he claims that the fifteenth supervised release condition violates his constitutional rights. For the reasons articulated below, we reject both arguments.

II.

We conduct a two-step analysis when reviewing the reasonableness of a sentence: “we first consider whether the district court committed significant procedural error, then we consider the substantive reasonableness of the sentence.” United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) ( en banc ).

A. Procedural Error

When determining whether a district court committed a reversible procedural error during sentencing, we consider whether the court “(1) correctly calculate[d] the Sentencing Guidelines range; (2) treat[ed] the Guidelines as Advisory; (3) consider[ed] the 18 U.S.C. § 3553(a) factors; (4) [chose] a sentence that is not based on clearly erroneous facts; (5) adequately explain[ed] the sentence; and (6) [did] not presume that the Guidelines range is reasonable.” United States v. Blinkinsop, 606 F.3d 1110, 1114 (9th Cir.2010) (footnote omitted) (citing Carty, 520 F.3d at 991–93). While Blinkinsop and Carty concerned allegations of procedural error with regard to terms of imprisonment, we consider the same factors when considering challenges to terms of supervised release. See Daniels, 541 F.3d at 921.

Apodaca's allegations of procedural error are limited to claims concerning the adequacy of the district court's explanation of why it was imposing a lifetime term of supervised release. The sentencing statutes require district courts to “state in open court the reasons [supporting] imposition of a particular sentence.” 18 U.S.C. § 3553(c). Further, “when a party raises a specific, non-frivolous argument tethered to a relevant § 3553(a) factor in support of a requested sentence, then the judge should normally explain why he accepts or rejects the party's position.” Carty, 520 F.3d at 992–93. Even though a “within-Guidelines sentence ordinarily needs little explanation,” courts are required to provide some explanation for their decision when “a party has requested a specific departure.” Id. at 992. Such explanations, however, only need to “set forth enough to satisfy the appellate court that [the trial court judge] considered the parties' arguments and has a reasoned basis for exercising his own legal decisionmaking authority.” Rita v. United States, 551 U.S. 338, 356, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). We have held that “no lengthy explanation is necessary if the record makes it clear that the sentencing judge considered the evidence and arguments.” Daniels, 541 F.3d at 922 (internal quotation marks omitted).

A review of the sentencing hearing transcript establishes that the district court provided an adequate explanation for the sentence it imposed on Apodaca. The court engaged in an extensive colloquy with the parties prior to sentencing, acknowledging what it felt were the strongest and weakest aspects of Apodaca's case. The sentencing judge also explicitly stated that he had considered all of the parties' and the probation officer's submissions—documents that contained the probation officer's recommendation of lifetime supervised release, Apodaca's objections and the United States' reply. Further, the district court properly determined that a lifetime term of supervised release is recommended by the Guidelines for his crime and that, while it was not compelled to sentence Apodaca to this term, the facts of Apodaca's case warranted a sentence that included lifetime supervised release. See 18 U.S.C. § 3583(k); U.S.S.G. § 5D1.2(b)(2) & cmt. n. 1. See also Daniels, 541 F.3d at 923. Finally, when Apodaca objected to the length of the sentence's term of supervised release, the district court addressed his concern (albeit briefly) and modified the language of the sentencing order to permit Apodaca to seek relief from this aspect of his sentence at a later date. It is clear that the trial court adequately justified its sentencing decisions.

B. Substantive Reasonableness

Having determined that the district court did not commit a procedural error when sentencing Apodaca, we turn to considering the sentence's substantive reasonableness. Blinkinsop, ...