NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JAN 14 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50239

Plaintiff-Appellee, D.C. No. 5:17-cr-00219-JAK-2 v.

RAYMOND WITZKE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California John A. Kronstadt, District Judge, Presiding

Argued and Submitted January 7, 2019 Pasadena, California

Before: TASHIMA and WATFORD, Circuit Judges, and ZOUHARY,** District Judge.

Raymond Witzke challenges three probation conditions imposed after his

conviction for mail theft in violation of 18 U.S.C. § 1708. We affirm as to two of

the conditions and remand for the district court to modify the third.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. Page 2 of 4

1. The district court did not procedurally err in imposing Condition 3, the

residential drug treatment condition. The district court sufficiently explained its

conclusion that residential drug treatment—rather than outpatient treatment—was

reasonably necessary, citing Witzke’s history of drug abuse, the instability in

Witzke’s life, and the breach of trust between Witzke and the court resulting from

Witzke’s having absconded from the residential drug treatment program that he

was ordered to complete as a condition of his pretrial release. Contrary to

Witzke’s argument, the record indicates that the district court did consider whether

the attendant deprivations of inpatient treatment were appropriate in light of

Witzke’s family relationships, as that consideration contributed to the court’s

decision to modify the condition by granting the probation officer discretion to

shorten the length of the treatment. Witzke’s argument that the court applied an

incorrect legal standard in justifying the condition by stating that inpatient

treatment would be more “effective” than outpatient treatment ignores that relative

effectiveness is one factor the court was statutorily required to consider, see 18

U.S.C. § 3553(a)(2)(D), and that the court had articulated the correct legal standard

before imposing the sentence.

2. The residential drug treatment condition is not substantively

unreasonable. The condition is reasonably related to the goals of deterrence and

protection of the public, given that Witzke’s criminal history is linked to drug Page 3 of 4

abuse. See U.S.S.G. § 5B1.3(b)(1)(C) & (D). The condition is reasonably

necessary to achieve those goals in light of Witzke’s history of drug abuse, which

includes drug use in violation of a court order two months before sentencing, and

the fact that Witzke had agreed to participate in—but then absconded from—a

residential drug treatment program months earlier. See U.S.S.G. § 5B1.3(b)(2).

3. The district court did not plainly err in imposing Condition 11, the

computer-search condition. In United States v. Bare, 806 F.3d 1011, 1017 (9th

Cir. 2015), we held that the district court did not abuse its discretion in imposing a

suspicionless computer-search condition because the district court articulated a

nexus between the condition and the goals of supervised release. The district court

in this case made no explicit nexus finding, but our holding in Bare does not

establish plain error here. Unlike the condition at issue in Bare, the condition in

this case permits a search of Witzke’s computer only upon reasonable suspicion

both that Witzke has violated one of the conditions of his probation and that his

computer contains evidence of the violation. The required nexus between the need

for the search and the goals of probation is thus apparent from the face of the

condition itself. Witzke emphasizes that his offense of conviction did not involve

computer use, but in Bare we held that the law does not require a direct nexus

between the offense conduct and the computer-search condition. Id. at 1019.

4. We vacate Condition 12, the notification condition imposed in this case, Page 4 of 4

because it is overly broad in one respect. We deemed a differently worded version

of this condition impermissibly vague in United States v. Evans, 883 F.3d 1154,

1163–64 (9th Cir. 2018). The language of the condition in this case does mitigate

at least somewhat the notice and discretion concerns we identified in Evans.

Unlike the condition in Evans, the condition imposed in this case requires the

probation officer to provide Witzke with notice of the specific disclosures he is

required to make, and it cabins the probation officer’s discretion by making clear

that the probation officer may not simply direct Witzke to notify a broad class of

persons about a broad category of risk. But the condition in this case does not

explicitly require that the risks requiring disclosure be posed by the defendant.

The district court may remedy this deficiency on remand by modifying the

condition to conform to the Sentencing Guidelines’ current standard notification

condition, U.S.S.G. § 5B1.3(c)(12) (“If the probation officer determines that the

defendant poses a risk to another person . . . .”), or the standard notification

condition in the Central District of California’s General Order No. 18-10 (“[T]he

defendant must notify specific persons and organizations of specific risks posed by

the defendant . . . .”).

AFFIRMED in part, VACATED in part, and REMANDED.