NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 3 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10289

Plaintiff-Appellee, D.C. No. 2:16-cr-01285-GMS

v.

MEMORANDUM*

CLIFTON YAZZIE,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, Chief Judge, Presiding

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

Clifton Yazzie appeals from the district court’s judgment and challenges the

ten-year term of supervised release and two special conditions imposed following

his guilty-plea conviction for failure to register as a convicted sex offender in

violation of 18 U.S.C. § 2250(a). We have jurisdiction under 28 U.S.C. § 1291,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). and we affirm.

As an initial matter, the government argues that Yazzie waived all of his

arguments on appeal. We are not persuaded that Yazzie’s request for a 10-year

supervised release term and shorter custodial sentence, or his agreement to certain

modifications to the challenged conditions, constitutes waiver. See United States

v. Gallegos-Galindo, 704 F.3d 1269, 1272 (9th Cir. 2013) (no waiver absent

evidence that defendant failed to object for tactical reasons). However, because

Yazzie did not object in the district court to the supervised release term, or to the

two challenged conditions, we review for plain error. See id.

Yazzie first contends that the district court procedurally erred by failing to

adequately explain why it imposed a term of supervised release double that of the

Guidelines’ recommendation. The presentence report, which the district court

adopted, stated that the Guidelines range was five years, but recommended an

upward variance to ten years to allow probation “to monitor the defendant in the

community and provide him with necessary services to reduce his risk to the

community.” The court’s statements at sentencing regarding Yazzie’s refusal to

obtain treatment and the danger he poses to the public make clear that it was

persuaded by probation’s recommendation. The court did not plainly err in failing

to provide a lengthier explanation. See United States v. Carty, 520 F.3d 984, 992

(9th Cir. 2008) (en banc) (adequate explanation can be inferred from the record).

2 17-10289 Yazzie next challenges special condition eight, which restricts Yazzie from

possessing material depicting sexually explicit conduct that involves “explicitly

sexually stimulating depictions of sexual conduct that are deemed inappropriate by

[his] probation officer,” and prohibits him from patronizing any place where such

materials are available or entering any location where the “primary function” is to

provide these materials. Contrary to Yazzie’s argument, this condition is neither

vague nor overbroad. See United States v. Gnirke, 775 F.3d 1155, 1166 (9th Cir.

2015). Moreover, the condition is substantively reasonable in light of Yazzie’s

underlying offense and failure to complete sex offender treatment. See 18 U.S.C.

§ 3583(d); United States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012).

Finally, Yazzie challenges special condition nine, which prohibits Yazzie

from directly or indirectly contacting the victim or victim’s family of his

underlying sexual offense without prior written permission from his probation

officer. Yazzie argues that, because his grandmother is a member of the victim’s

family, this condition unduly impinges upon his right to familial association.

Contrary to Yazzie’s argument, the district court stated enough to justify this

condition, even assuming that it affects a significant liberty interest. See Wolf

Child, 699 F.3d at 1090. Moreover, the condition is not impermissibly vague or

overbroad, nor is it substantively unreasonable. See id.

AFFIRMED.

3 17-10289