UNITED STATES of America, Plaintiff-Appellee, v. Tim James COLLINS, Defendant-Appellant.
No. 10-50344.
United States Court of Appeals, Ninth Circuit.
Filed June 22, 2012.
684 F.3d 873
Argued and Submitted April 11, 2012.
Before: ANDREW J. KLEINFELD and MILAN D. SMITH, JR., Circuit Judges, and ALGENON L. MARBLEY, District Judge.*
OPINION
MARBLEY, District Judge:
Tim James Collins appeals his conviction and imposition of a 60-month sentence following his entry of a plea of guilty to a single charge of possessing child pornography that had been shipped in interstate commerce, in violation of
Collins challenges his conviction and sentence on three bases: (1) the district court‘s acceptance of Collins‘s guilty plea violated
The district court did not err in accepting Mr. Collins‘s guilty plea, and Collins‘s challenges to the grand jury instructions were untimely and therefore waived. Accordingly, we AFFIRM Collins‘s conviction. We hold, however, that the district court committed procedural error by failing to provide adequate analysis for the imposition of the residency restrictions in Collins‘s lifetime term of supervised release. We, therefore, VACATE the supervised release portion of his sentence, and REMAND the case to the district court to resentence Collins under the First Superseding Indictment. The district court‘s articulated reasons for its imposed sentence must show that it properly analyzed all the required factors to be considered undеr
I. BACKGROUND
A. Factual History
On December 19, 2007, an FBI Special Agent, working undercover, used peer-to-peer network software to view lists of videos and images stored on Collins‘s computer. The agent downloaded and viewed three images that appeared to be child pornography. On March 6, 2008, agents executed a federal search warrant at Collins‘s residence in Anaheim, California. During the search, law enforcement officers seized Collins‘s computer equipment, including several compact discs and a Seagate brand hard drive (“the hard drive“).
A search of the compact discs and the hard drive revealed images depicting actual minors engaged in sexually explicit con-
Additionally, a woman, “M.A.,” told FBI agents that in 2005, when she was a fifteen year-old girl, Collins traveled to the Philippines where she lived and had sexual intercourse with her multiple times knowing that M.A. was only fifteen. Collins admitted to having had a sexual relationship with M.A., but disputes that he knew she was underage at the time.
B. Procedural History
On August 6, 2008, a grand jury (“the original grand jury“) returned a single-count indictment against Collins, charging him with a violation of
On July 15, 2009, Collins and the government entered into a plea agreement in which Collins agreed “to plead guilty to count one of the superseding indictment.” In exchange for Collins‘s guilty plea, the government agreed, inter alia, to move to dismiss the remaining count of the First Superseding Indictment and not to prosecute Collins for his 2005 sexual conduct with “M.A.,” or for his possession of additional child pornography, neither of which had been charged in the First Superseding Indictment.
On August 18, 2009, the district court held a change of plea hearing. After placing Collins under oath, the court thoroughly questioned him and advised him of his constitutional rights, which he waived. Taking the elements directly from Collins‘s plea agreement, the government recited the elements required to establish a violation of
The district court accepted Collins‘s guilty plea. In doing so, however, the court misspoke and, instead of asking Collins how he desired to plead to count one of the superseding indictment, the court asked Collins how he desired to plead to count one of “the indictment.” No objections were raised to the validity of the guilty plea, and the hearing was adjourned.
Realizing its misstatement, the district court contacted the parties and scheduled a second hearing for August 31, 2009. At the August 31, 2009 hearing, the court announced its previous error, and proposed placing Collins under oath again to clarify that Collins intended to plead to Count One of the First Superseding Indictment. Collins‘s lawyer stated: “We
The court then stated to Collins that: “at the end [of the prior hearing], the concluding question was ‘how do you plead to Count One of the Indictment.’ I made an error. I should have said the ‘First Superseding Indictment.‘” The court asked Collins if he had discussed this issue with his lawyer. Collins responded that indeed he had. The court then asked the question again, “Sir, how do you plead to Count One of the First Superseding Indictment?” Collins responded, “Guilty.” The court accepted Collins‘s plea and made several findings before ending the hearing, including a finding that Collins “entered his plea freely and voluntarily with a full understanding of the charges against him and the consequences of his plea.”
On July 12, 2010, the district сourt sentenced Collins to a total of 60 months’ imprisonment.1 The district court also imposed, over the objections of Collins, a lifetime term of supervised release, and a special assessment of $100.
In the court‘s sentencing memorandum explaining its decision to impose a lifetime period of supervised release, the court cited the “policy of the Guidelines to impose a maximum term of supervised release,” but also indicated it understood the need to “make a particularized determination and ... not rely on generalities.” The court explained that the seriousness of Collins‘s offense, downloading and sharing a “substantial volume” of “hard core child pornography,” warranted the need for a life term of supervision. The court added, however, that “[i]f [Collins] demonstrates rehabilitation after a number of years, he is free to seek termination of supervised release.”
As part of the life term of supervised release, and again over the objections of Collins, the district court imposed several special conditions of supervised release. These conditions include prohibiting Collins from frequenting or loitering “within 100 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or any other places primarily used by persons under the age of 18” (“Condition 11“), as well as a residency restriction, referred to as “Condition 15,” which provides:
The defendant shall not reside within 2,000 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or any 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 ten days prior to any scheduled move.
In response to Collins‘s objections to Condition 15, the court simply responded that, “[t]he short answer is that as a general matter, Collins must follow the law as a condition of supervised release, and this
II. JURISDICTION
We have jurisdiction over this appeal from a conviction and final decision of the district court under
III. DISCUSSION
A. Acceptance of Collins‘s Plea of Guilty
1. Standard of Review
For an error to affect substantial rights, “in most cases it means that the error must have been prejudicial: It must have affected the outcome of the district court proceedings.” United States v. Olano, 507 U.S. 725, 734 (1993). Certain “structural” Rule 11 errors, however, have been deemed so fundamental as to “undermin[e] the fairness of a criminal proceeding as a whole,” and require reversal “without regard to the mistake‘s effect on the proceeding.” Dominguez Benitez, 542 U.S. at 81. Hence, if the plain error was a structural one, the existence of prejudice is generally presumed. See United States v. Sandoval-Mendoza, 472 F.3d 645, 652 (9th Cir. 2006). The Supreme Court has “found structural errors only in a very limited class of cases.” Johnson v. United States, 520 U.S. 461, 469 (1997) (listing examples of structural errors). To meet his burden for reversal, the defendant “must prove that there is a ‘reasonable probability that, but for the error, he would not have entered the plea.‘” Borowy, 595 F.3d at 1049 (quoting Monzon, 429 F.3d at 1272).
2. Analysis
Collins alleges three separate errors affecting his plea of guilty. First, he alleges that the district court was incorrect in assuming that the August 18, 2009 plea to a charge in the original indictment was invalid and required correction. Second, Collins claims the district court‘s proposing its own resolution of its mistake during the first plea colloquy was a violation of Rule 11‘s prohibition against the court participating in plea discussions, and constituted structural error. Third, Collins claims the district court again violated Rule 11 by accepting Collins‘s August 31, 2009 guilty plea to Count One of the Superseding Indictment without advising Collins of the nature of the charge to which he was pleading.
We hold that the district court‘s conducting a subsequent hearing to correct
a. Validity of Collins‘s Original Plea
Collins alleges that the district court erred by improperly attempting to correct Collins‘s initial plea of guilty from the August 18, 2009 change of plea hearing. Collins contends that although he inadvertently plеd to the wrong charge at that hearing—because of the court‘s reference to “the indictment” instead of the superseding indictment—he insists that the initial plea was nevertheless a validly accepted plea. Collins claims that the plea he entered on August 18, 2009, contravened the language of the plea agreement, and, as such, constituted plain error.
To establish plain error the defendant must show: “‘(1) error, (2) that is plain, (3) that affected substantial rights, and (4) that seriously affected the fairness, integrity or public reputation of the judicial proceedings.‘” Borowy, 595 F.3d at 1049 (quoting United States v. Benz, 472 F.3d 657, 659 (9th Cir. 2006)).
The rationale behind Collins‘s first assignment of error is rather tenuous. There is no dispute that the district court incorrectly stated “the indictment,” as opposed to “the superseding indictment,” during the August 18, 2009 plea colloquy. Likewise, no party disputes that Collins intended to plead to Count One of the First Superseding Indictment, as provided in the plea agreement. Upon realizing its mistake, the district court called the parties back into court. The court repeatedly asked Collins if he had any objections to the proposed hearing to correct the record, to which Collins repeatedly replied that he did not. The district court, accordingly, made no wrong assumptions in seeking to correct its mistaken colloquy, let alone any reversible errors.
The first two elements of the test for reversible plain error are met, as the district court admitted its error on the record, and the error was plain enough. As Collins asserts, the August 18, 2009 plea contravened the intent of parties reflected in their plea agreement. Collins is unable to meet the third element for plain error, however. The subsequent August 31, 2009 hearing corrected the “error,” and Collins has shown no adverse effect to his substantial rights, nor any effect on the fairness, integrity or public reputation of the judicial proceedings. Borowy, 595 F.3d at 1049. Even if the original plea was technically valid, and in contravention of the plea agreement, the court did not proceed under that plea in sentencing Collins. Moreover, the charges were identical in nature, which further negates any possibility of prejudice or harm to Collins‘s substantial rights. Collins fails to meet elements three and four of the plain error test.
b. The District Court‘s Participation in Plea Negotiations
Second, Collins claims the district court violated Rule 11‘s prohibition against the court participating in plea negotiations by proposing a solution to its mistake of referencing “the indictment” at the August 18, 2009 hearing. We review this claim de novo. United States v. Torres, 999 F.2d 376, 378 (9th Cir. 1993). Before we do, however, it bears repeating that neither Collins nor the government lodged any objections to the court‘s proposal of holding an additional hearing to correct the mistake and ensure the record was clear that Collins was pleading to the intended charge in the First Superseding Indictment.
Collins, however, seeks a finding of judi-cial misconduct based on the district court‘s efforts to correct a mere misstate-ment in the original plea colloquy. He insists that the district court, after identi-fying that the plea was made to the wrong indictment, should have “left the resolution to the parties.”
The district court‘s second hearing, to assure that the record reflected Collins‘s plea to the superceding indictment as his plea agreement had already provided, can-not reasonably be characterized as “partic-ipation” in plеa negotiations. There is no evidence or arguments suggesting that the court‘s proposed hearing to enter a new plea had any influence on the already final-ized plea agreement between Collins and the government, which remained intact and unchanged. See United States v. Frank, 36 F.3d 898, 902 (9th Cir. 1994) (permitting certain court involvement in the plea process where it “took place after, not before, the parties had concluded their agreement, and the prosecutor had laid it out in open court“).2 Had the court failed to correct its mistake, its erroneous collo-quy would have remained intact, potential-ly in contravention of the plea agreement.
We hold that the court‘s proposal to correct a misstatement in the plea colloquy to which all parties agreed, precisely so that the intent of the plea agreement would be effectuated, does not violate Rule 11‘s prohibition of judicial interference.
c. The Court‘s Failure tо Inform Collins of the Nature of the Charge
In Collins‘s third alleged Rule 11 error, he claims the district court failed to advise him properly of the nature of the charge to which he was pleading at the final, August 31, 2009 hearing. Specifical-ly, Collins complains that the court violat-ed Rule 11 in failing to explain the rela-tionship between the charge to which he had erroneously pled on August 18, 2009, and the charge to which he was pleading at the August 31, 2009 hearing. Collins claims this was reversible error despite admitting that the court explained, at length, the nature and elements of the charged offense at the August 18, 2009 hearing, and that the charge to which he pled in the original indictment and the charge to which he later pled in the su-perseding indictment are identical.
Rule 11 requires the district court, be-fore it accepts a defendant‘s plea of guilty
The adequacy of the district court‘s Rule 11 plea colloquy is subject to our de novo review. United States v. Minore, 292 F.3d 1109, 1115 (9th Cir. 2002). Collins relies on McCarthy v. United States, 394 U.S. 459 (1969) in demanding that he be permitted to enter a new plea. In McCarthy, the Supreme Court held that “a defendant is entitled to plead anew if a United States district court accepts his guilty plea without fully adhering to the procedure provided for in Rule 11.” Id. at 463-64. Rule 11, however, has since been amended, and now specifi-cally provides that not every violation of its terms entitles the defendant to with-draw his guilty plea.
It is true that the district court did not re-conduct the full Rule 11 colloquy at the August 31, 2009 hearing, which may have run afoul of Rule 11‘s requirements had that hearing been a stand-alone change of plea proceeding. See, e.g., United States v. Pena, 314 F.3d 1152, 1156 (9th Cir. 2003) (in which a more thorough plea colloquy nevertheless “failed to comply with Rule 11 because the district court never ex-plained to [the defendant] the nature of the charges against him“). The court and the parties, however, expressly understood the August 31, 2009 hearing to be a contin-uation of the prior change of plea hearing, in which it is undisputed the court conduct-ed a full plea colloquy.
At the August 18, 2009, hearing the district court went into detail regarding the elements of the violation of
The charge to which Collins pled from the original indictment and the charge in the superseding indictment were identical. Any technical noncompliance with Rule 11 at the August 31, 2009 hearing, therefore, was harmless, as the outcome of the pro-ceedings would undoubtedly have re-mained the same even if the court had decided not to hold the August 31, 2009 hearing. See United States v. Raineri, 42 F.3d 36, 41 (1st Cir. 1994) (“Harmless error analysis usually poses the question wheth-er the error influenced the decision-maker or whether the ultimate outcome would have been the same if the error had not been committed[.]“). There is no evidence in the record to suggest that Collins would have done anything other than affirm his guilty plea—as he had done at the prior change of plea hearing—if the court had repeated the full colloquy over again.
Because it is abundantly clear from the record of the August 18, 2009 and August 31, 2009 hearings that the court adequately informed Collins of, and Collins confirmed
Collins has failed to identify any struc-tural errors committed by the district court in accepting Collins‘s plea of guilty to count one of the superseding indictment, and has failed to make a showing of preju-dice which would render any of the alleged deficiencies with the court‘s procedure in accepting the plea reversible plain errors.
B. Instructions Given to the October 2008 Grand Jury
1. Standard of Review
Collins claims, for the first time on appeal, that the district court‘s instructions to the October 2008 Grand Jury were defective, and as a result the superseding indictment was not returned by a duly constituted grand jury. Objec-tions to the indictment raise questions of law which are reviewed de novo. United States v. Kahlon, 38 F.3d 467, 469 (9th Cir. 1994). Under
Even where an error in the grand jury instructions is brought to thе district court‘s attention prior to conviction, “dis-missal of the indictment ‘is appropriate only if it is established that the violation substantially influenced the grand jury‘s decision to indict or if there is grave doubt that the decision to indict was free from the substantial influence of such viola-tions.‘” United States v. Caruto, 663 F.3d 394, 399 (9th Cir. 2011) (quoting United States v. Navarro, 608 F.3d 529, 539 (9th Cir. 2010)).
2. Analysis
Collins alleges that the instruc-tions made to the October 2008 Grand Jury were improper for: (1) using manda-tory language forbidding the grand jury from considering punishment, and (2) pro-viding further misleading instructions which undermined the grand jury‘s discre-tionary function. Collins alleges that the improper instructions constituted structur-al error, and, as a result, Collins cannot be required to plead to the superseding in-dictment returned by the October 2008 Grand Jury.
It is well-established that “[t]he Fifth Amendment may be violated if the independence of the grand jury in per-forming its historical function is substan-tially infringed.” United States v. Caruto, 627 F.3d 759, 763 (9th Cir. 2010). In fur-therance of our duty to safeguard the grand jury‘s independence, this Court has condemned instructions to grand juries with impermissible “mandatory” language. See id.
Collins complains that the district court‘s instruction tо the jury that “when deciding whether or not to indict, you can-not consider punishment in the event of conviction,” was improper because it for-bade the jury from considering punish-ment. The given instruction deviated from the relevant Model Grand Jury Charge, which uses less mandatory phrasing and states that, “you should not consider pun-ishment in the event of conviction.” Model Grand Jury Charge (MGJC) § 10 (empha-sis added). The district court also gave instructions from Model Grand Jury
Collins acknowledges that both of these latter instructions have been previously upheld as constitutional. See United States v. Navarro-Vargas, 408 F.3d 1184, 1202-05 (9th Cir. 2005) (en banc); Caruto, 663 F.3d at 401. Nevertheless, he chal-lenges them for reflecting the misguided “present legal culture” that discourages grand juries from exercising robust discre-tion, in contrast to what the framers of the Fifth Amendment intended.
What Collins fails to address, however, is that he did not timely raise these alleged “structural” errors in the instructions giv-en to the October 2008 Grand Jury in district court proceedings. Collins pro-vides nо defense—presumably because none exists—as to why he has not waived his challenge to the lawfulness of the grand jury‘s indictment. The Court, therefore, need not take up the substance of Collins‘s arguments, much less re-visit the development of the modern grand jury, as the Court did at length in Navarro-Vargas, because Collins failed to preserve these challenges in the court below.
The pre-2002 version of Rule 12 ex-pressly included any and all defenses or objections based on defects in the indict-ment in the class of challenges waived if not brought рrior to trial. The previous Rule‘s subsections (b)(2) and (f) stated, in pertinent part:
(b) any defense, objection, or request which is capable of determination with-out the trial of the general issue may be raised before trial by motion.... The following must be raised prior to trial:
(1) Defenses and objections based on defects in the institution of the prose-cution; or
(2) Defenses and objections based on defects in the indictment ...
(f) Failure by a party to raise defenses or objections or to make requests which must be made prior to trial, ..., shall constitute waiver thereof, but the court for cause shown may grant relief from the waiver.
When the Advisory Committee adopted the current version of Rule 12(b), it specifi-
Having failed to raise thе alleged defects in the instructions to the October 2008 Grand Jury prior to his conviction, and having shown no good cause for granting relief from Rule 12‘s mandated waiver, Collins has relinquished his opportunity to raise the instructional challenges on ap-peal.
C. The Court‘s Imposition of a Life Term of Supervised Release
1. Standard of Review
The Court‘s review of Collins‘s sentence involves a two-step determination for whether the district court abused its discretion. First, we review the sentence for any significant procedural errors. United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en banc). As a matter of procedural due process, “a sentencing judge must explain a sentence sufficiently to communicate ‘that a reasoned decision has been made’ and ‘permit meaningful appellate review.‘” United States v. Rudd, 662 F.3d 1257, 1260 (9th Cir. 2011);
In the second step, we review the sen-tence for its substantive reasonableness, accounting for the “totality of the circum-stances” рresented to the district court. United States v. Blinkinsop, 606 F.3d 1110, 1116 (9th Cir. 2010). This Court, tracking the language of
The length of a term of super-vised release is reviewed for its reason-ableness using the same, deferential, abuse-of-discretion standard used for chal-lenges to any other part of the defendant‘s sentence. United States v. Apodaca, 641 F.3d 1077, 1079 (9th Cir. 2011), cert. denied, ___ U.S. ___, 132 S. Ct. 296, 181 L. Ed. 2d 179 (2011). Additionally, we re-view the district court‘s decision to impose a particular condition of a term of super-vised release for an abuse of discretion. Rudd, 662 F.3d at 1259; United States v. Stoterau, 524 F.3d 988, 1002 (9th Cir. 2008).
2. Analysis
Collins challenges the district court‘s procedural and substantive reasonableness in imposing the lifetime term of supervised release with Condition 15, which prohibits him from residing within 2,000 feet of parks, schools, and other child areas, par-ticularly in conjunction with Condition 11, which prohibits frequenting or loitering “within 100 feet of school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or any oth-er places primarily used by persons under the age of 18.” Collins also argues that Condition 15 violates his fundamental con-stitutional rights of travel, association, and enjoyment of property, as well as his Eighth Amendment right to be free from excessive punishment.
When reviewing a term of super-vised release for procedural error, “we consider the same factors” that pertain to reviewing terms of imprisonment. Apodaca, 641 F.3d at 1081. To be a procedurally proper sentence, the district court must do the following:
(1) correctly calculate the Sentencing Guidelines range; (2) treat the Guide-lines as advisory; (3) consider the
18 U.S.C. § 3553(a) factors; (4) choose a sentence that is not based on clearly erroneous facts; (5) adequately explain the sentence; and (6) not presume that the Guidelines range is reasonable.
Blinkinsop, 606 F.3d at 1114 (citing Gall v. United States, 552 U.S. 38, 51 (2007)).
Collins‘s claims of procedural error relate to the burden of proof that the district court adopted in its determination that a lifetime term of supervised release with Conditions 11 and 15 was appropriate in this case. The appropriate burden of proof for a court‘s determination during sentencing is a question of law which we review de novo. See United States v. Treadwell, 593 F.3d 990, 1000 (9th Cir. 2010) (stating that “[o]rdinarily, a district court uses a preponderance of the evidence standard of proof when finding facts at sentencing“).
Collins claims that the district court improperly presumed the reason-ableness of the Sentencing Guidelines’ rec-ommendation of a lifetime period of super-vised release, by treating the lifetime length of supervised release as the “base line” at the sentencing hearing. For Col-lins‘s offense of possession of child pornog-raphy, the Sentencing Guidelines authorize a term of supervised release for no less than five years, and the statutory maxi-mum of a life term is recommended. See
Despite Collins‘s claims to the contrary, the court‘s stated reasoning behind impos-ing the lifetime term as part of Collins‘s sentence shows that the court duly con-sidered whether the recommended life-time duration of supervised release was reasonable. The court made a point to clarify that it “must make a particularized determination and must not rely on gen-eralities” in light of “the policy of the Guidelines to impose a maximum term of supervised release.” The court then dis-cussed the particular nature and charac-teristics of Collins‘s offense which led it to find a lifetime term warranted, as
It is entirely appropriate to do as the court did here and treat the Guidelines recommendation as “the starting point and thе initial benchmark” for arriving at its sentence, so long as the court does not simply adopt the recommendation without considering the
Collins also attacks the reason-ableness of the special conditions of his life term of supervised release, in particular Condition 15. Collins claims the residency restrictions of Condition 15 constitute an “extremely disproportionate effect on the sentence,” and the district court should have required the government to satisfy a heightened “clear and convincing” stan-dard before imposing Condition 15. See, e.g., United States v. Restrepo, 946 F.2d 654, 660 (9th Cir. 1991); United States v. Berger, 587 F.3d 1038, 1047 (9th Cir. 2009). Collins also insists that the dis-trict court‘s justification for imposing the onerous restrictions of Condition 15 was insufficient, and that the court misapplied prior precedent.
Pursuant to
reasonably related to the goals of deter-rence, protection of the public, or reha-bilitation of the offender; involve no greater deprivation of liberty than nec-essary to achieve those goals; and are consistent with any pertinent policy statements issued by the Sentencing Commission.
United States v. Riley, 576 F.3d 1046, 1048 (9th Cir. 2009).
In weighing these factors for a particu-lar defendant, this Court has held that “the government ‘shoulders the burden of proving that a particular condition of su-pervised release involves no greater de-privation of liberty than is reasonably necessary to serve the goals of supervised release.‘” Id. (quoting United States v. Weber, 451 F.3d 552, 559 (9th Cir. 2006)); see also Rudd, 662 F.3d at 1260 (“The burden of establishing the necessity of any condition falls on the government.“).
We reject Collins‘s proposed application of the heightened “clear and convincing” burden to the government‘s request for the lifetime term of release with Condition 15. The clear and convincing standard has been reserved for “exceptional” enhance-ments of the defendant‘s offense level cal-culation. See United States v. Felix, 561 F.3d 1036, 1047 (9th Cir. 2009). Condition 15 is a special condition of release, not an enhancement to Collins‘s sentence. The clear and convincing standard, historically, has only been applied to sentencing courts’ findings in support of offense level en-hancements, never for terms of supervised release.
Although we decline to impose retroac-tively a heightened standard of proof on the government to support its requested conditions of release, we must still review the district court‘s reasoning for each part of the sentence, including the imposed con-ditions of supervised release, for whether the district court adequately considered the
It is well-established law that “it would be procedural error ... to fail adequately to explain the sentence select-
There can be no doubt that Collins‘s conditions of supervised release impose significant—even extreme—restrictions on his liberty. The residency restriction ef-fectively prevents Collins from living in any urban area.7 See Rudd, 662 F.3d at 1264 (stating that, additionally, “[s]everal courts have also found that similar resi-dency restrictions subject defendants to a state of ‘constant eviction,’ because the prohibited locations could potentially move or open in new places“). Such a serious restriction requires sufficient explanation, particularly where, as here, the reason-ableness of the restriction is not at all clear from the record. The district court, however, justified the residency restriction here by simply stating that the
While the Guidelines recommend a life-time term of supervised release for Col-lins‘s class of sex offenders,
Here, rather than weighing the requisite
Collins‘s lifetime term with Condition 15 places his supervised release in league with the most restrictive terms, imposed on the most serious child molesters. Col-
The district court, however, appears not to have considered the appropriate sen-tencing factors when it imposed Condition 15. By only vaguely referencing just one of the factors (protection of minors), the court‘s Order “neither communicates ‘that a reasoned decision has been made,’ nor is sufficient to ‘permit meaningful appellate review.‘” Rudd, 662 F.3d at 1263 (quoting Carty, 520 F.3d at 992).
The district court‘s reliance on the 2,000-foot residency restriction for all reg-istered sex offenders under
The residency restriction imposed by the court, however, is not identical to the California Penal Code‘s,11 and even if it were, the district court still has a duty to analyze the appropriateness of Condition 15 pursuant to the required federal sen-
In sum, it was procedural error for the district judge to impose a residency re-striction with Condition 15‘s duration and breadth as part of Collins‘s federal sen-tence without an analysis of the basis therefor per the federal sentencing re-gime. While the practical effect of remov-ing the 2,000-foot restriction from his sen-tence may be minimal, the Penal Code‘s restriction in
We vacate the residency restriction and remand Collins‘s sentence to the district court to provide the appropriate analysis and support for its imposed terms and conditions of supervised release.
c. Substantive Reasonableness of Condition 15
The next step in our review of Collins‘s conditions of release would be to evaluate them for substantive reasonable-ness. The sentencing court “enjoys sig-nificant discretion in crafting terms of su-pervised release for criminal defendants, including the authority to impose restric-tions that infringe on fundamental rights,” but that discretion “is not, however, boundless.” United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006). In Weber, the Court held that “conditions of super-vised release are permissible only if they are reasonably related to the goal of de-terrence, protection of the public, or reha-bilitation of the offender.” Id. at 558.
There is good reason to suspect that the imposition of the sweeping residency rе-striction in Condition 15 for life is substan-tively unreasonable for Collins‘s conviction of possession of child pornography.12 Be-cause we have concluded the district court procedurally erred by failing to provide adequate reasons for imposing Condition 15 where the reasons for such a condition were not clear form the record alone, it follows that we do not reach the question of the substantive reasonableness of Col-lins‘s conditions of release. We remand the determination of the substantive rea-sonableness of Condition 15 to the district court, as part of its reconsideration under
d. Constitutional Challenges to Condition 15
Collins raises a number of constitutional challenges to the restrictions posed by the lifetime term of supervised release con-taining Condition 15. Collins claims that
The Court need not address the consti-tutional arguments against Condition 15 at this time, having already decided to re-mand the supervised release portion of Collins‘s sentence to the district court for reconsideration. The Court also leaves open, for now, the question of the constitu-tionality of the
IV. CONCLUSION
For the foregoing reasons, Collins‘s сon-viction is AFFIRMED. The portion of Collins‘s sentence containing the lifetime term of supervised release is VACATED and REMANDED to the district court, with instructions for the court to consider all the required factors under
Notes
The court may order, as a further condi-tion of supervised release, to the extent that such condition—
(1) is reasonably related to the factors set forth in section [3553(a) ] ... and;
(2) involves no greater deprivation of lib-erty than is reasonably necessary for the purposes set forth in section [3553(a) ] ... and;
(3) is consistent with any pertinent policy statements issued by the Sentencing Com-mission pursuant to
28 U.S.C. 994(a) ; [and] any condition set forth as a discretionary condition of probation insection 3563(b) [18 USCS § 3563(b)] and any other condi-tion it considers to be appropriate.