U.S. v. Quinzon
| Decision Date | 11 July 2011 |
| Docket Number | No. 10–50240.,10–50240. |
| Citation | 643 F.3d 1266 |
| Parties | UNITED STATES of America, Plaintiff–Appellee,v.Pio James QUINZON, aka J.R., Defendant–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
OPINION TEXT STARTS HERE
Sean K. Kennedy, Federal Public Defender, Jonathan D. Libby (argued), Deputy Federal Public Defender, Los Angeles, CA, for the defendant-appellant.André Birotte, Jr., United States Attorney, Robert E. Dugdale and Jean–Claude André (argued), Assistant United States Attorneys, Los Angeles, CA, for the plaintiff-appellee.Appeal from the United States District Court for the Central District of California, S. James Otero, District Judge, Presiding. D.C. No. 2:09–cr–00903–SJO–1.Before: HARRY PREGERSON, RAYMOND C. FISHER, and MARSHA S. BERZON, Circuit Judges.
Pio James Quinzon was convicted of possession of child pornography. He now appeals a judgment that includes, as a condition of supervised release, a requirement that monitoring technology be installed on his computer-related devices.
In July 2009, the United States Secret Service received information that someone in a residence in Lakewood, California was downloading child pornography from the Internet, and so obtained and executed a search warrant of the home. While doing so, the agents found Quinzon living there and seized his computer. Quinzon admitted, in an interview conducted during the search, that he had downloaded child pornography using peer-to-peer file sharing programs. A later search of his computer confirmed there was child pornography on it.
Following the search and his admission, Quinzon pled guilty to one count of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Quinzon's plea agreement included a limited waiver of appeal, in which he agreed, among other things, not to appeal various conditions of supervised release the district court might choose to impose, provided that the term of supervised release was ten years or fewer. One of the conditions specified as not subject to appeal was that “[a]ll computers, computer-related devices, computer storage media, and peripheral equipment used by defendant shall be subject to ... the installation of search and/or monitoring software and/or hardware.”
A presentence report was circulated prior to the sentencing hearing, but the probation officer's recommended conditions of supervised release were transmitted to the court in a separate, confidential letter and not disclosed to the parties. In Quinzon's written sentencing position, he noted that the recommendations were confidential and requested that, “[i]f the Court is considering imposing any special conditions of supervised release ... those conditions be disclosed sufficiently in advance of the sentencing to allow a meaningful opportunity to object to the proposed conditions.” The district court did not respond to Quinzon's request.
The sentencing hearing was held in May 2010. During the hearing, Christopher Dybwad, counsel for Quinzon, acknowledged that the appeal waiver in Quinzon's plea agreement listed some possible conditions of supervised release, and he stated that if the court was contemplating imposing any of those conditions, he wanted a chance to object to some of them. Dybwad also raised “objections for the record based on what [he] underst[oo]d probation to typically recommend in these cases,” emphasizing, in particular, his concern about possible “computer-use conditions.” After some back and forth between counsel and the court, during which Dybwad was somewhat successful in narrowing certain of the conditions not pertinent to Quinzon's appeal, the court announced it was considering “Condition Number 7,” which provided that “ ‘[t]he defendant shall be subject to the installation of monitoring software and hardware.’ ”
Dybwad objected to that condition, “because of the availability of something called, ‘filtering software,’ which is a less restrictive alternative than the monitoring software and hardware.” The prosecutor responded that filtering software would be inadequate, because it could be circumvented and would not track communications sent by Quinzon. Dybwad, however, disagreed: “The concern raised by monitoring software,” Dybwad insisted, “is if you analogize a computer to a diary, it's essentially—it's allowing someone to see every aspect of your thoughts and a condition that has been found in the past to be overbroad and not as narrowly tailored as it could be given the available software.”
After listening to the parties' arguments, the court announced the sentence: 84 months of imprisonment, followed by thirty years of supervised release, during which Quinzon would be subject to sixteen conditions. Despite Dybwad's objections, the court imposed the following condition:
Quinzon, who is not scheduled to be released from custody until January 1, 2016, appealed. As the conditions of supervised release apply for thirty years rather than ten, the appeal waiver in the plea agreement is not applicable.
We first reject Quinzon's argument that his conditions of supervised release should be vacated because he was not afforded adequate notice that the district court was considering imposing them.
Federal Rule of Criminal Procedure 32(i)(1)(C) requires district courts at sentencing to “allow the parties' attorneys to comment on the probation officer's determinations and other matters relating to an appropriate sentence.” Rule 32(i)(4)(A)(i), in turn, requires courts, before imposing sentence, to “provide the defendant's attorney an opportunity to speak on the defendant's behalf.”
We held in United States v. Wise, 391 F.3d 1027 (9th Cir.2004), that Rule 32 also provides defendants the right to receive notice that a condition of supervised release “not on the list of mandatory or discretionary conditions in the sentencing guidelines” is under consideration before it may be imposed. Id. at 1033. The defendant in Wise had been convicted of lying to the federal government by attempting to obtain a Social Security number under false pretenses. Id. at 1028–29. As a condition of her supervised release, Wise lost custody of her son and was prohibited from having contact with him without prior approval from the Probation Office and from the state office that provided for dependent children. Id. at 1030–31. That condition was surprising, not only because it was unrelated to the crime of conviction, but also because (1) the condition was not recommended in the presentence report; (2) the judge did not announce before imposing sentence that he was contemplating it; (3) the U.S. Sentencing Guidelines Manual made no mention of such a condition; (4) and “nothing else in the record suggested the condition as a possibility before it was imposed.” Id. at 1032–33. Without notice of the custody condition, Wise's attorney made no arguments against it before imposition of sentence. Id.
Given the circumstances, and in light of then-existing Supreme Court precedent interpreting Rule 32 to require that courts provide notice before departing from sentencing guidelines ranges, see Burns v. United States, 501 U.S. 129, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991), limited by Irizarry v. United States, 553 U.S. 708, 128 S.Ct. 2198, 171 L.Ed.2d 28 (2008), we vacated Wise's sentence due to lack of notice.1 391 F.3d at 1033. The notice requirement we articulated is a flexible one: “The form and timing of notice are left to the discretion of the district court,” and “[i]t may be enough in many cases for the judge to mention orally at the sentencing hearing that he is contemplating a condition, in case either party wishes to comment or request a continuance.” Id.
Given that pragmatic standard, Quinzon received adequate notice that the computer monitoring condition was under consideration.2 The district court announced at the sentencing hearing that it was considering imposing a monitoring condition, and both parties had an opportunity at that time to comment. Dybwad apparently anticipated that the court might impose computer monitoring, as he presented an argument regarding its intrusiveness and “point [ed] the court's attention” to United States v. Lifshitz, 369 F.3d 173 (2d Cir.2004), a case raising concerns about computer monitoring.
It is no mystery how Dybwad predicted that the condition might come up: Several cases have approved, in some form, computer monitoring imposed on defendants convicted of child pornography offenses, see United States v. Goddard, 537 F.3d 1087, 1090 (9th Cir.2008); United States v. Rearden, 349 F.3d 608, 620 (9th Cir.2003), and the condition was acknowledged as a possibility in Quinzon's plea agreement. There may be instances in which the inclusion in a plea agreement of potential conditions of supervised release will not reasonably put a defendant on notice that they are likely to be considered by the court. Here, though, the plea agreement listed only a few conditions, all of which are either included in the Sentencing Guidelines Manual or are often imposed in child pornography cases.
True, the court in Wise indicated that “advance written notice would work best” in certain cases. 391 F.3d at 1033. For instance, such notice was required in Wise itself, because the defendant could not have predicted that she would lose custody of and contact with her own child absent approval by the Probation Office and a state office. But for run-of-the-mill cases, Wise indicated that raising a condition during a sentencing hearing would likely be sufficient. Id. As Quinzon's attorney reasonably could—and did—predict that the condition would be imposed, and given that the...
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