United States v. Wayne Partin

MEMORANDUM *

Wayne Partin pled guilty to accessing with intent to view child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). He appeals Special Condition 4 of his ten years of supervised release, which forbids him from knowingly acquiring materials *539 that depict sexually explicit conduct as defined by 18 U.S.C. § 2256 (2)(A). We have jurisdiction under 28 U.S.C. § 1291 .

We review a challenge to a supervised release condition for an abuse of discretion. United States v. Weber, 451 F.3d 552, 557 (9th Cir.2006). “[W]e give considerable deference to a district court’s determination of the appropriate supervised release conditions,” recognizing that “a district court has at its disposal all of the evidence, its own impressions of a defendant, and wide latitude.” Id. (internal quotation marks omitted).

Although Special Condition 4 satisfied 18 U.S.C. § 3583 (d)(1), the district court did not have the benefit of United States v. Gnirke, 775 F.3d 1155, 1163-65 (9th Cir.2015), when it rendered its decision in this case. Accordingly, we vacate Special Condition 4 and remand for the district court to impose a condition consistent with Gnirke .

VACATED and REMANDED for…

FILED

NOT FOR PUBLICATION JUL 30 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-30119

Plaintiff - Appellee, D.C. No. 2:12-cr-00008-DLC-

v.

MEMORANDUM*

WAYNE ALAN PARTIN,

Defendant - Appellant.

Appeal from the United States District Court for the District of Montana Dana L. Christensen, Chief District Judge, Presiding

Argued and Submitted July 10, 2015 Portland, Oregon

Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

Wayne Partin pled guilty to accessing with intent to view child pornography

in violation of 18 U.S.C. § 2252A(a)(5)(B). He appeals Special Condition 4 of his

ten years of supervised release, which forbids him from knowingly acquiring

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. materials that depict sexually explicit conduct as defined by 18 U.S.C.

§ 2256(2)(A). We have jurisdiction under 28 U.S.C. § 1291.

We review a challenge to a supervised release condition for an abuse of

discretion.…

dissenting:

We are compelled by binding circuit precedent to affirm. The challenged condition in this case is not overbroad and does not deprive Partin of more liberty than is reasonably necessary to effectuate the terms of supervised release. Our recent decision in United States v. Gnirke, 775 F.3d 1155 (9th Cir.2015), does not overrule this precedent and is not controlling in this case. Therefore, I respectfully dissent.

The special condition of supervised released imposed on Partin is a familiar one. Indeed, as the district court noted when Partin objected to the imposition of Special Condition 4, it was crafted to fit within the parameters of our case law. In United States v. Rearden, 349 F.3d 608 (9th Cir.2003), and United States v. Daniels, 541 F.3d 915 (9th Cir.2008), we upheld conditions of supervised release that were identical to the special condition imposed on Partin in all material respects. Those cases stand for the proposition that special conditions of supervised release that define “sexually explicit conduct” by reference to 18 U.S.C. § 2256 (2) do not restrict a defendant’s rights more than reasonably necessary to effectuate the goals of supervised release and…