FILED
NOT FOR PUBLICATION OCT 02 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50112
Plaintiff - Appellee, D.C. No. 8:11-cr-00049-ABC
v.
MEMORANDUM *
JONATHAN ROARKE,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Submitted, September 24, 2013 **
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Jonathan Roarke appeals from the district court’s judgment and challenges
the lifetime term of supervised release and one condition of supervised release
imposed following his guilty-plea conviction for possession of child pornography,
in violation of 18 U.S.C. § 2252A(a)(5)(B). We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
§ 1291, and we affirm in part and vacate and remand in part.
Roarke contends that the district court did not adequately explain why a
lifetime term of supervised release was necessary. We review for plain error, see
Valencia-Barragan, 608 F.3d 1103, 1108 n.3 (9th Cir. 2010), and find none. The
record reflects that the district court considered the parties’ arguments and the
probation officer’s recommendation before imposing the Guidelines-recommended
term; thus, the court did not err. See United States v. Daniels, 541 F.3d 915, 922
(9th Cir. 2008).
Roarke also contends that the lifetime term of supervised release is
inconsistent with legislative history of the supervised release statute and otherwise
substantively unreasonable. The court did not abuse its discretion in imposing
Roarke’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The within-
Guidelines sentence is substantively reasonable in light of the totality of the
circumstances and the 18 U.S.C. § 3553(a) sentencing factors, including the nature
of the offense and the need to protect the public. See Daniels, 541 F.3d at 923-24.
Roarke further contends that condition 18, prohibiting him from viewing or
possessing materials “depicting and/or describing ‘sexually explicit conduct,’ as
defined at 18 U.S.C. § 2256(2), during the course of treatment,” is overly broad
because it encompasses legal materials and materials necessary for his court-
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mandated treatment. We review the district court’s imposition of this special
condition for plain error. See United States v. Cope, 527 F.3d 944, 957 (9th Cir.
2008). We agree that the condition may improperly interfere with Roarke’s ability
to bring collateral proceedings or participate in required counseling or treatment.
See id. at 957-58. Accordingly, we vacate condition 18 and remand with
instructions that the district court amend condition 18 with the modifying language
contained in condition 12, which clarifies that the condition does not apply to
materials related to a collateral attack or used for the purpose of court-mandated
treatment. See id.
Roarke’s request to file this disposition under seal or, alternatively, under a
pseudonym is denied.
AFFIRMED in part; VACATED and REMANDED in part.
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