Rios

MEMORANDUM **

Appellant Daniel Rios (“Rios”) challenges the district court’s decision to revoke his probation. We have jurisdiction under 28 U.S.C. §§ 1291 and 1294(1), and we affirm.

In November 1988, Rios pled guilty to four counts of abusive sexual conduct with children under the age of twelve, in violation of 18 U.S.C. §§ 1153 and 2244(a)(1) (1988). The district court sentenced Rios to eight years imprisonment in connection with two of those counts. In connection with the other two counts, the court suspended imposition of sentence and imposed concurrent five year terms of probation to begin upon termination of the prison term. Rios received credit for good conduct and was released early from prison on December 10, 1993. Pursuant to 18 U.S.C. § 4164 (repealed), Rios was deemed released on parole until the date 180 days prior to the expiration of the maximum prison term originally imposed.

Rios began serving the two concurrent five-year probation terms on April 27, 1996. On June 12, 1997, Rios met with his probation officer to discuss modifying the conditions of his probation to add new “sex offender” special conditions. One of these special conditions was that Rios “shall…

dissenting.

I respectfully dissent.

The disposition says that the violation of the no-contact-with-children provision “constitutes an adequate basis for the district court’s decision, [so] we do not reach the other issues raised by the appellant.” 1 That is illogical. The judge sent Rios to prison for five years, not only for brushing by a boy as he entered, and the boy left, the K-Mart men’s room, but also for possessing sexually oriented material. If a judge sentences a man to five years for two separate wrongs, it is quite possible that the judge would not have imposed so harsh a sentence for only one of the wrongs. We do indeed have to reach appellant’s other issues.

In my view, the prohibition on the possession of sexually stimulating material that Rios was held to have violated itself violated his First Amendment right to freedom of thought and speech and his Fifth Amendment right to fair notice of what, on pain of imprisonment, he was forbidden to do. 2 Much of the material he possessed is, on its face, entirely non-sexual, such as pictures of fully-clothed children and adults picking cactus fruit on a summer field trip, and videotapes of the most innocent G-rated…