United States v. Michael Sharp
469 F. App'x 523
9th Cir.
2012
Check Treatment
Docket

UNITED STATES of America, Plaintiff-Appellant, v. Pamela D. MEZA, Defendant-Appellee.

No. 11-10047

United States Court of Appeals, Ninth Circuit

Feb. 24, 2012

523

Submitted Feb. 21, 2012.* Filed Feb. 24, 2012.

UNITED STATES of America, Plaintiff-Appellee, v. Michael James SHARP, Defendant-Aрpellant.

No. 10-30374.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 11, 2012. Filed Feb. 24, 2012.

Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

MEMORANDUM **

The United States appeals the district court‘s order reducing the criminal forfeiture money judgment against Pamela D. Meza. We have jurisdiction under 28 U.S.C. § 1291.

In light of our holding in

, we vacate the district court‘s order reducing Meza‘s criminal forfeiture money judgment to $298,646.00, and we remand.

VACATED and REMANDED.

Christian S. Nafzger, Esquire, Assistant U.S. Attоrney, Office of the U.S. Attorney, Boise, ID, for Plaintiff-Appellee.

Thomas Monaghan, Chief Assistant Federal Public Defender, Melissa D. Winberg, ‍​‌​‌​​​‌​‌‌​​​‌​‌‌​​​‌​​‌‌‌​‌​‌​‌‌‌​​​‌‌​‌‌‌​​‌​‍Federal Defender Services of Idaho, Boise, ID, for Defendant-Appellant.

Before: TASHIMA, GRABER, and RAWLINSON, Circuit Judges.

MEMORANDUM *

Michael James Sharp, a convicted sex offender, appeals several conditions of su-pervised release imposed following his guilty-plea conviction for felon firearm possession. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm in part, reverse in part, and remand for further proceedings.

1. Sharp first contends that the conditions imposed оn him were premised on disputed facts in the presentence investigation report (“PSR“) about which the court had made no findings. But, although Fed.R.Crim.P. 32 would have required the court to rule on “specific factual objections” to the PSR,

, Sharp made no such objections. Therefore, the trial сourt was ‍​‌​‌​​​‌​‌‌​​​‌​‌‌​​​‌​​‌‌‌​‌​‌​‌‌‌​​​‌‌​‌‌‌​​‌​‍entitled to accept the PSR‘s factual assertions as true. See Fed.R.Crim.P. 32(i)(3)(A);
(en banc) (“[T]he district court may rely on undisputed statements in the PSR аt sentencing.“).

2. Sharp next objects to several special conditions imposed on him on the ground that they are excessive. This court reviews for abuse of discretion the imposition of conditions of supervision.

. Although in this context the court‘s discretion is “wide,” it is not “unfettered.”
. Conditions must be substantively reasonable—that is, be “reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the offender,” and involve “no greater deprivation of liberty than is reasonably necessary for the purposes” of supеrvised release.
(internal quotation marks omitted). They must also be imposed in a procedurally acceptable fashion; if the justification for a condition is not “apparent from the record,” the district court must spell it out at sentencing.
(emphases omitted), cert. denied,
; see
.

(a) The condition requiring that Sharp undеrgo a sex offender evaluation, and the condition requiring that Sharp receive treatment for sexual deviancy, should his probation оfficer direct it, have no apparent justification in the record, and the district court ‍​‌​‌​​​‌​‌‌​​​‌​‌‌​​​‌​​‌‌‌​‌​‌​‌‌‌​​​‌‌​‌‌‌​​‌​‍did not provide one. These conditions are not reasonably related to the firearm possession offense of which Sharp was convicted; nor are they reasonably related to his past violations of court-ordered conditions, none of which involved sexual behavior. See

(conditions must be based on an “individualized” assessment of “the nature and circumstances of the offense and the history and characteristics of the defendant” (internal quotatiоn marks omitted)). Moreover, Sharp‘s sex offense was more than a decade old at the time of sentencing, making it too remote to justify the conditions by itself. See
. These conditions are therefore vacated.1 On remand, the district court may consider reimposing the conditions, but would have to justify them with specific, relevant findings supported by the record. See
(vacating a special condition on the ground that it appeared arbitrary and remanding for the district cоurt to further explain or reconsider the condition).

(b) The other three challenged special conditions,2 which heavily restrict Sharp‘s contact with children, have some basis in the record. Sharр‘s previous violations of court orders, though they do not reflect improper sexual behavior, suggest a willingness to endanger minors and thus fully supрort two of the restrictions on Sharp‘s access to them. But the restriction that prohibits residency or loitering within 100 feet of areas primarily used by minors goes too far, at least on this record, because it provides no opportunity for the probation officer to grant an еxemption. See

(vacating blanket prohibition and remanding for the district court to consider tailoring the restriction to allow access based on permission from the probation officer);
(“The probation officer, who has regular contact with a sex offender on suрervised release, in consultation with treatment provider(s), is in the best position to determine the appropriate contact with minors for a released defendant ‍​‌​‌​​​‌​‌‌​​​‌​‌‌​​​‌​​‌‌‌​‌​‌​‌‌‌​​​‌‌​‌‌‌​​‌​‍convicted of a child-pornography crime, even with the defendant‘s children.“). This condition is vacatеd and remanded for the district court to consider tailoring it to allow access if the probation officer grants permission.

(c) Last, Sharр challenges the imposition of a standard condition that he not associate with known felons, without making any exception for his wife (a knоwn felon), and without giving any reasons why. To the extent that this condition relates to Sharp‘s wife, it is not materially distinguishable from

, which held that a condition prohibiting contact between the defendant and her “life partner” implicated a “significant liberty interest” and thus required the district court to examine the pair‘s “present circumstances and relationship” and to “articulate” the reasons for imposing the condition.
; see
.

Here, as in Napulou, there is no record evidence about the present circumstances and relationship between Sharp and his wife, no evidence as to whethеr contact between the two would raise the odds of Sharp‘s returning to a criminal life, and no findings on these matters. That Sharp‘s wife has minor childrеn is not enough, standing alone, to proscribe contact with her without explanation. See

(“Th[e] tailoring requirement is all the more important in cases ... where a particularly strong liberty interest is at stake.“). The condition is therefore vacated to the extent it prohibits contаct with Sharp‘s wife. The district court may reimpose the condition if it includes an exception for Sharp‘s wife or provides adequate rеasons why no such exception is justified.

REVERSED and REMANDED.

RAWLINSON, Circuit Judge, concurring:

I concur in the result.

Notes

1
The treatment condition is vacated only to the degree that it refers to sexual deviancy, i.e., the portion that reads, “including but not limited to cognitive/behavioral treatment for sexual deviancy by a qualified mental health professional.”
2
At oral argument, Sharp‘s counsel withdrew a challenge to another special condition, which requires polygraph testing, except to the extent of such testing in connection with the now-vacated conditions of sex offender evaluation and treatment.
*
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. Aрp. P. 34(a)(2). This disposition is not appropriate for publicаtion and is not precedent except as provided by 9th Cir. R. 36-3.
**
This disposition is not appropriate for publication and ‍​‌​‌​​​‌​‌‌​​​‌​‌‌​​​‌​​‌‌‌​‌​‌​‌‌‌​​​‌‌​‌‌‌​​‌​‍is not precedent except as provided by 9th Cir. R. 36-3.
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