United States v. Dylan Zara

MEMORANDUM *

Dylan Josh Zara challenges six special conditions of supervised release imposed by the district court following his guilty plea to production of child pornography in violation of 18 U.S.C. § 2251 (a), advertisement of child pornography in violation of 18 U.S.C. § 2251 (d), distribution of child pornography in violation of 18 Ij.S.C. § 2252(a)(2), and possession of child pornography in violation of 18 U.S.C. § 2252 (a)(4)(B). Because Zara did not object to the conditions in the district court, we review for plain error. See United States v. Phillips, 704 F.3d 754, 762 (9th Cir.2012). We affirm in part, vacate in part, and remand.

Zara argues the district court committed plain error when it imposed a supervised release condition prohibiting him from consuming alcohol. Due to Zara’s history of substance use, the district court did not plainly err in concluding that the condition is reasonably necessary to protect the public and rehabilitate Zara. See United States v. Sales, 476 F.3d 732, 735-36 (9th Cir.2007).

Zara ’further argues that a condition providing that he “shall not add, remove, upgrade, update, reinstall, repair, or otherwise modify the hardware or software…

concurring in part, and dissenting in part:

I agree with my colleagues for the most part, but I do not believe that the residency and loitering conditions are facially overbroad. First, as the residency condition is concerned, Zafa has not shown that the opportunity to live within “direct view” of distant schools or parks is a “substantial right.” See United States v. Joseph, 716 F.3d 1273, 1277 (9th Cir.2013) (on plain eiTor review, we have discretion to address only those errors that “affect[ ] substantial rights”). Second, I read both the residency and loitering conditions to apply only to public parks and pools that are frequented by children. Construed in light of the conditions’ purpose, I understand the phrase “primarily used by persons under the age of 18” to refer not only to “other places” but to all the specific locations listed, including “parks” and “public swimming pools.” See Barnhart v. Thomas, 540 U.S. 20, 26 , 124 S.Ct. 376 , 157 L.Ed.2d 333 (2003) (noting that the rule of the last antecedent may be “overcome by other *801 indicia of meaning”). For these reasons, I would affirm the district court’s imposition of the residency and loitering conditions.

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT APR 17 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 13-10680

Plaintiff - Appellee, D.C. No. 3:11-cr-00819-SI-

v.

MEMORANDUM*

DYLAN JOSH ZARA,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Susan Illston, Senior District Judge, Presiding

Argued and Submitted March 12, 2015 San Francisco California

Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.

Dylan Josh Zara challenges six special conditions of supervised release

imposed by the district court following his guilty plea to production of child

pornography in violation of 18 U.S.C. § 2251(a), advertisement of child

pornography in violation of 18 U.S.C. § 2251(d), distribution of child pornography

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. in violation of 18 U.S.C. § 2252(a)(2), and possession of child pornography in

violation of 18 U.S.C. § 2252(a)(4)(B). Because Zara did…