FILED

NOT FOR PUBLICATION

DEC 08 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-10442

Plaintiff-Appellee, D.C. No. 4:13-cr-00750-CKJ-JR-1 v.

BENJAMIN FORNES, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding

Argued and Submitted November 15, 2016 San Francisco, California

Before: SCHROEDER, REINHARDT, and OWENS, Circuit Judges.

Defendant-Appellant Benjamin Fornes appeals from the district court’s

imposition of a condition of supervised release, which requires him to submit to

suspicionless searches of his person, property, house, residence, vehicle, and

papers. We review conditions of supervised release for abuse of discretion.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. United States v. Bare, 806 F.3d 1011, 1016 (9th Cir. 2015). As the parties are

familiar with the facts, we do not recount them here. We affirm.

Section 3583(d)(2) requires that a supervised release condition “involve[] no

greater deprivation of liberty than is reasonably necessary for the purposes set forth

in section 3553(a)(2)(B), (a)(2)(C), and (a)(2)(D).” 18 U.S.C.

§ 3583(d)(2). Fornes contends that the district court’s determination that a

suspicionless search condition was reasonably necessary failed to adequately

consider his individualized circumstances. However, the record shows that the

district court sufficiently considered Fornes’s individual circumstances in imposing

the suspicionless search condition. The district court stated that the condition was

reasonable “based on the underlying nature of this conviction, which is possession

with intent to distribute a large quantity of heroin” and “given the substance abuse

issues.” The court acknowledged that the suspicionless search condition was

broad, but justified the lack of a reasonable suspicion requirement by noting that “I

think that this search condition will enhance the probation officer’s ability to

adequately supervise you.”

Furthermore, we have held that suspicionless search requirements in

conditions of supervised release are not an abuse of discretion. In United States v.

Betts, we held that a district court did not abuse its discretion when it imposed a

2 suspicionless search condition on a defendant convicted of conspiracy to commit

fraud in the credit reporting sector. 511 F.3d 872, 876 (9th Cir. 2007). Here, as in

Betts, the district court justified the reasonableness of a suspicionless search

condition based on Fornes’s individualized circumstances. In this case, these

circumstances included the nature of his crime, his risk of substance abuse, and the

probation officer’s need to adequately supervise him. Accordingly, the district

court did not abuse its discretion because it did not fail to consider whether the

suspicionless search condition was reasonably necessary, as required by section

3583(d)(2).

Fornes also argues that the district court violated section 3583(d)(3) by

failing to consider that the Sentencing Commission’s policy statements recommend

imposing a suspicionless search condition only on sex offenders, and do not

explicitly recommend such a condition for drug traffickers. Section 3583(d)(3)

provides that a supervised release condition must be “consistent with any pertinent

policy statements issued by the Sentencing Commission pursuant to 28 U.S.C.

994(a).” 18 U.S.C. § 3583(d)(3).

However, Fornes mischaracterizes the Sentencing Commission’s policy

statement as implying that suspicionless search conditions should only be imposed

on sex offenders. While the Sentencing Guidelines recommend suspicionless

3 search conditions for sex offenders, see U.S.S.G. § 5D1.3(d)(7)(C), they also state

that the same suspicionless search condition “may otherwise be appropriate in

particular cases.” U.S.S.G. § 5D1.3(d). Therefore, there is no Sentencing

Commission policy limiting suspicionless searches to sex offenders, and Fornes

fails to cite any authority to the contrary. The district court did not abuse its

discretion in imposing the suspicionless search condition without expressly

considering the Sentencing Commission’s policy statements. To the extent Fornes

suggests that reasonable suspicion is required even for sex offenders, he is

mistaken. See U.S.S.G. 5D1.3(d)(7)(c) (allowing for searches “upon reasonable

suspicion . . . , or by any probation officer in the lawful discharge of the officer’s

supervision functions”) (emphasis added).

AFFIRMED.

4

FILED

United States v. Fornes, No. 15-10442

DEC 08 2016

Reinhardt, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the memorandum disposition, but I do so noting two concerns. First,

the search condition in this case did not explicitly state that Fornes could be

searched without a warrant or reasonable suspicion. This issue, however, was not

raised on appeal and thus is not before us. Second, I am concerned by the

representation made during oral argument that suspicionless searches are, in some

districts, becoming a common condition of supervised release. Such a condition is

a serious infringement upon a defendant’s liberty and privacy, and should be

imposed only when, as here, it is specially justified by the facts of the case at hand.