Apodaca

concurring:

Because the district court committed no procedural error and sentenced Apodaca to the lifetime term of supervised release recommended by the Guidelines, our precedents require us to affirm Apodaca’s sentence. See, e.g., United States v. Carty, 520 F.3d 984, 993-94 (9th Cir.2008) (en banc). I therefore concur in the judgment and almost all of the opinion.

I write separately to state my view that the applicable statute, 18 U.S.C. § 3583 (k), and Guidelines policy statement, U.S.S.G. § 5D1.2(b)(2), grossly overestimate the risk that defendants like Apodaca, who are convicted only of possessing child pornography downloaded from the Internet, and who have no prior contact child sex abuse convictions, will commit contact sex offenses against children. Compare, e.g., United States v. Williams, 636 F.3d 1229, 1231-32 (9th Cir.2011) (prior child sexual assault convictions). The routine imposition of lifetime terms of supervised release on Internet-only child pornography offenders departs from Congress’s purpose in enacting § 3583(k) and ignores the best available empirical evidence. This practice results in onerous sentences imposed without individualized attention to the…

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…

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.

Before: RICHARD D. CUDAHY, [*] KIM McLANE WARDLAW and WILLIAM A. FLETCHER, Circuit Judges.

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.

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…