FILED

NOT FOR PUBLICATION

MAR 14 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10238

Plaintiff-Appellee, D.C. No. 4:14-cr-02147-RCC-EJM-1 v. District of Arizona

JOSHUA LEE ANDREW MERRITT,

MEMORANDUM*

Defendant-Appellant,

Appeal from the United States District Court for the District of Arizona Judge Raner C. Collins, District Judge, Presiding

Argued and Submitted March 11, 2024 San Francisco, California

Before: S.R. THOMAS, McKEOWN, and CHRISTEN, Circuit Judges.

Joshua Merritt appeals the district court’s imposition of two special

conditions of supervised release as part of the sentence imposed following his jury

conviction for distribution and possession of child pornography. Because the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. parties are familiar with the factual and procedural history of the case, we do not

recount it here.

Our jurisdiction is governed by 28 U.S.C. § 1291. Where, as is the case

here, a defendant fails to object to a condition of supervised release at sentencing,

review is for plain error. United States v. Magdaleno, 43 F.4th 1215, 1221 (9th

Cir. 2022). To establish plain error, the defendant must demonstrate “(1) error, (2)

that was clear or obvious, (3) that affected substantial rights, and (4) that seriously

affected the fairness, integrity, or public reputation of the judicial proceedings.” Id.

(citation omitted). We affirm the district court’s imposition of Special Conditions

11 and 12.

I

Merritt argues that Special Condition 12, which forbids any contact with

minors absent his own children, was implemented without following the necessary

procedural safeguards and was substantively unreasonable. When reviewing

conditions of supervised release, we examine (1) whether the district court

committed procedural error and (2) whether the condition is substantively

reasonable, accounting for the totality of the circumstances. Magdaleno, 43 F.4th

at 1221 (citation omitted).

2 First, the district court did not commit a procedural error by imposing

Special Condition 12. If a condition affects a defendant’s right to associate with an

intimate family member, “the district court must ‘undertake an individualized

review’ on the record between the defendant and the family member at issue to

determine whether the restriction is necessary to accomplish the goals of

deterrence, protection of the public, or rehabilitation.” United States v. Wolf Child,

699 F.3d 1082, 1090 (9th Cir. 2012) (quoting United States v. Napulou, F.3d 1041,

1047 (9th Cir. 2010)).

Merritt argues that his relationship with his nieces is an intimate familial

relationship that required individualized review. However, we have not recognized

a defendant’s relationship with his siblings as implicating a “particularly

significant liberty interest,” let alone one’s nieces or nephews. See Magdaleno, 43

F.4th at 1222. Thus, the district court did not commit a procedural error by

implementing Special Condition 12 without an individualized review of Merritt’s

relationship with his nieces.

Second, the district court did not plainly err as a matter of substantive law

when it imposed the condition. “District judges enjoy broad discretion in

fashioning the conditions needed for successful supervision of a defendant, and we

owe substantial deference to the choices they make.” United States v. LaCoste,

3 821 F.3d 1187, 1190 (9th Cir. 2016). “Special conditions are permissible,

provided that ‘they are reasonably related to the goal[s] of deterrence, protection of

the public, or rehabilitation of the offender, and involve no greater deprivation of

liberty than is reasonably necessary for the purpose of supervised release.’” United

States v. Blinkinsop, 606 F.3d 1110, 1119 (9th Cir. 2010) (quoting United States v.

Rearden, 349 F.3d 608, 618 (9th Cir. 2003)).

Special Condition 12 imposes an absolute ban on Merritt’s contact with

minors. In the context of child pornography offenses, we have only addressed

conditions that limit, rather than prohibit, a defendant’s contact with minors. See,

e.g., United States v. Apodaca, 641 F.3d 1077, 1084-85 (9th Cir. 2011) (upholding

a condition of release that allowed a defendant convicted of possessing child

pornography to have contact with children in the presence of their duly notified

parent or legal guardian); see also United States v. Stoterau, 524 F.3d 988, 1008

(9th Cir. 2008) (upholding a nearly identical condition). Thus, although those

cases may be read to imply that an absolute ban would be unreasonable, we have

not squarely addressed that issue. Because “[a]n error cannot be plain where there

is no controlling authority on point,” we cannot conclude that the imposition of

Special Condition 12 was plain error. United States v. Gnirke, 775 F.3d 1155,

1164 (9th Cir. 2015) (citation omitted).

4 That being said, Merritt can pursue a modification of Special Condition 12

by the district court pursuant to 18 U.S.C. § 3583(e)(2). Any overbreadth in the

condition can be then addressed by the district court in the first instance.

II

The district court did not plainly err by imposing Special Condition 11,

which limits Merritt’s access to computers, because it is not unconstitutionally

vague. “A condition of supervised release violates due process ‘if it either forbids

or requires the doing of an act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its application.’” United

States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018) (quoting United States v.

Hugs, 384 F.3d 762, 768 (9th Cir. 2004)).

Merritt argues that Special Condition 11 does not contain limiting language

that ameliorates the concerns addressed in United States v. Wells, 29 F.4th 580

(9th Cir. 2022). However, Special Condition 11 explicitly states that it applies to

computers “with access to any on-line computer service.” Thus, a plain reading of

Special Condition 11 shows that it only applies to devices that Merritt can use to

access the internet and Special Condition 11 does not violate the Fifth

Amendment.

5 The United States has suggested that we issue a limited remand so that the

district court can modify this condition to conform with the District of Arizona’s

revised standard conditions, and Merritt has agreed with this request. However,

absent plain error, and in light of the fact that the parties can pursue a modification

of Special Condition 12 by the district court pursuant to 18 U.S.C. § 3583(e)(2),

we decline to vacate the district court’s imposition of this condition and remand.

The parties can pursue modification by other means.

AFFIRMED.

6