U.S. v. Weber

• Decision Date: 20 June 2006
• Docket Number: No. 05-50191.,05-50191.
• Citation: 451 F.3d 552
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Matthew Henry WEBER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

451 F.3d 552

UNITED STATES of America, Plaintiff-Appellee, v. Matthew Henry WEBER, Defendant-Appellant.

No. 05-50191.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 13, 2006.

Filed June 20, 2006.

COPYRIGHT MATERIAL OMITTED

Maria Stratton, Federal Public Defender, and Jonathan D. Libby, Deputy Federal Public Defender, Los Angeles, CA, for defendant-appellant Matthew Henry Weber.

Debra Wong Yang, United States Attorney, Thomas P. O'Brien, Assistant United States Attorney, and Jennifer Corbet, Assistant United States Attorney, Los Angeles, CA, for plaintiff-appellee United States of America.

Appeal from the United States District Court for the Central District of California; Dean D. Pregerson, District Judge, Presiding. D.C. No. CR-03-00049-DDP.

Before CANBY, JR., NOONAN, and BERZON, Circuit Judges.

Opinion by Judge Berzon; Concurrence by Judge Noonan

BERZON, Circuit Judge.

Penile plethysmograph testing is a procedure that "involves placing a pressuresensitive device around a man's penis, presenting him with an array of sexually stimulating images, and determining his level of sexual attraction by measuring minute changes in his erectile responses." Jason R. Odeshoo, Of Penology and Perversity: The Use of Penile Plethysmography on Convicted Child Sex Offenders, 14 TEMP. POL. & CIV. RTS. L. REV. 1, 2 (2004). Although one would expect to find a description of such a procedure gracing the pages of a George Orwell novel rather than the Federal Reporter, plethysmograph testing¹ has become routine in the treatment of sexual offenders and is often imposed as a condition of supervised release. We address the procedures that must be followed before a district judge may impose such a requirement on a criminal defendant.

I.

In May of 2001, an electronics store technician discovered several images of child pornography on the hard drive of a computer that the defendant, Matthew Henry Weber, had brought in for repairs. The manager of the store informed the Los Angeles Police Department of the images, which contacted the FBI. When Weber arrived to pick up his computer, he was interviewed by an FBI agent about the images. Weber claimed to be unaware of the child pornography images on his computer. The FBI seized Weber's computer and conducted a full forensic examination of the hard drive, uncovering hundreds of images depicting children engaged in sexually explicit activity.

On January 17, 2003, a grand jury in the Central District of California returned a one-count indictment charging Weber with possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B).² Weber subsequently pleaded guilty to the single count in the indictment, pursuant to a plea agreement with the U.S. Attorney's Office. On March 4, 2005, the district court sentenced the defendant to twenty-seven months imprisonment and three years of supervised release.

In preparing the presentence report (PSR), the Probation Office proposed that twenty special conditions be imposed as specific terms of Weber's supervised release. Among them was Condition Nine, the requirement that Weber

participate in a psychological/psychiatric counseling and/or a sex offender treatment program, which may include inpatient treatment, as approved and directed by the Probation Officer. The defendant shall abide by all rules, requirements, and conditions, of such program, including submission to risk assessment evaluation(s), and physiological testing, such as polygraph, plethysmograph, and Abel testing,[³] and shall take all prescribed medication.

As justification for the proposed conditions of supervised release, the PSR stated:

During the period of supervised release, it is imperative that the defendant, who has mental health issue [sic], continue to receive mental health treatment and counseling. Further, it is recommended that the defendant continue sex offender treatment, and to be subject to intensive supervision to monitor the defendant's progress. Meanwhile, these special conditions are necessary to protect the public as the defendant undergoes treatment. . . . Conditions Nos. 3 to 5, and 8 to 19 have been recommended as a result of the instant offense involving the possession of child pornography, which was collected and stored using his computer, and the history and characteristics of the defendant.

In his written objections to the PSR and orally at the sentencing hearing, Weber objected to only one aspect of his supervised release — the requirement that he submit to plethysmograph testing.⁴ The district court declined to strike that condition, stating:

Now, in terms of [Condition] number nine, the particular testing, what I — if you felt for whatever reason and could support those reasons that whatever test was requested was medically not necessary, you could certainly ask — express that to the probation officer and ask for a hearing, but I intend to keep the condition; but you certainly, as in any condition, probation — or for supervised release, you would have the ability to request a modification.

The district court overruled Weber's objection and incorporated all of the proposed conditions into the judgment and commitment order. Weber timely appealed.

II.

Before turning to the merits of Weber's appeal, we consider whether Weber's claim is ripe for review. Although neither party raises the issue of ripeness, because "[t]he constitutional component of ripeness is a jurisdictional prerequisite," United States v. Antelope, 395 F.3d 1128, 1132 (9th Cir.2005), we are obligated to address the matter on our own motion "to ensure that proper subject matter jurisdiction exists to hear the case," Poland v. Stewart, 117 F.3d 1094, 1104 (9th Cir. 1997).

Condition Nine requires Weber to participate in a sexual offender treatment program and submit to various tests, including plethysmograph testing, as a part of that program. There is nothing in the record indicating that Weber has yet been ordered to undergo plethysmograph testing and it is not certain that he will ever be ordered to do so.⁵ That determination will presumably be made by Weber's probation officer in consultation with the appropriate treatment personnel. Weber's refusal to submit to plethysmograph testing once ordered would place him in violation of the terms of his supervised release.

A defendant need not refuse to abide by a condition of supervised release to challenge its legality on direct appeal from the imposition of sentence. In United States v. Williams, 356 F.3d 1045, 1049-51 (9th Cir.2004), the defendant objected to the condition of his supervised release that required him to take psychotropic and other medications prescribed for treatment of his mental illness. Although there was no evidence that the defendant had refused to take any such medications, we rejected the government's argument that adjudication of the propriety of the condition was premature. Id. at 1051. Rather, we held the jurisdictional prerequisite of ripeness does not require "violation of a specified supervised release condition to permit appellate review." Id.

Relying on Williams, we recently rejected a similar argument by the government that a challenge to a supervised release condition that depended on several contingencies was unripe for appellate review. See United States v. Rodriguez-Rodriguez, 441 F.3d 767, 771-72 (9th Cir.2006). In Rodriguez-Rodriguez, the defendant was convicted of illegal reentry following deportation and was sentenced to a prison term of seventy-seven months, to be followed by a three-year term of supervised release. Id. at 769. Among the conditions of his supervised release was a requirement that he report to the probation officer within seventy-two hours of his release from custody or reentry into the United States. Id. The government claimed Rodriguez-Rodriguez's challenge to the condition was not ripe because it depended on a number of contingencies that had yet to occur, in particular, the completion of his prison term, deportation, and illegal reentry into the United States. Id. at 771. Unpersuaded, we held that the defendant could raise a facial challenge to the reporting condition as it was a part of the sentence imposed — a final judgment subject to immediate appeal pursuant to § 3742(a). Id. at 771-72.

The same is true here. The silence in the record as to whether Weber has previously had to undergo plethysmograph testing or will have to do so at some point in the future does not make this case unripe for review. A term of supervised release, even if contingent, is part and parcel of the defendant's sentence and can be challenged on direct appeal. Accordingly, there is no jurisdictional barrier to our consideration of the merits.

III.

We begin our merits analysis with a discussion of several governing principles.

A. Statutory Framework

Although the consideration of plethysmograph testing as a term of supervised release is a question of first impression in this circuit, we are guided in our analysis by the statutory requirements governing the imposition of conditions of supervised release and by our prior case law interpreting those requirements. We have repeatedly held that a district court enjoys significant discretion in crafting terms of supervised release for criminal defendants, including the authority to impose restrictions that infringe on fundamental rights. See United States v. T.M., 330 F.3d 1235, 1239-40 (9th Cir.2003); United States v. Bee, 162 F.3d 1232, 1234 (9th Cir.1998). In fashioning conditions of supervised release, a district court "has at its disposal all of the evidence, its own impressions of a defendant, and wide latitude." Williams, 356 F.3d at 1052. In light of this "wide latitude," we give considerable deference to a district court's determination of the appropriate supervised release conditions, reviewing those conditions deferentially, for abuse of discretion. Id.

A district court's discretion in this...