FILED
NOT FOR PUBLICATION AUG 06 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 09-10236
)
Plaintiff – Appellee, ) D.C. No. 2:06-CR-00283-JCC-1
)
v. ) MEMORANDUM*
)
JOHN MARVIN BALLARD, )
)
Defendant – Appellant. )
)
UNITED STATES OF AMERICA, ) No. 09-10237
)
Plaintiff – Appellee, ) D.C. No. 2:05-CR-00168-JCC-KJM-1
)
v. )
)
JOHN MARVIN BALLARD, )
)
Defendant – Appellant. )
)
Appeal from the United States District Court
for the Eastern District of California
D. Lowell Jensen, District Judge, Presiding
John C. Coughenour, District Judge, Presiding
Argued and Submitted July 12, 2010
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: FERNANDEZ, W. FLETCHER, and TALLMAN, Circuit Judges.
John Marvin Ballard appeals his conviction and sentence in district court
case number 06-cr-00283-JCC (hereafter number 283)1 for concealing and
covering up material facts. See 18 U.S.C. § 1001(a). He also appeals the
revocation of his supervised release and his ensuing sentence therefor in district
court case number 05-cr-168-JCC (hereafter number 168).2 We affirm in part and
vacate and remand in part.
(1)3 Ballard first asserts that the indictment in number 283 and the
revocation proceeding in number 168 should have been dismissed because a
probation officer improperly added a residential term to his conditions of
supervised release. That claim is otiose because, in accordance with the law, the
term was added with Ballard’s express waiver and consent so that he would have a
place to reside until something better, but appropriate, came along. See Fed. R.
Crim. P. 32.1(c)(2)(A).
(2) Ballard next complains that the indictment in number 283 and the
1
Appeal number 09-10236.
2
Appeal number 09-10237.
3
This issue and the issues in paragraphs (2) and (3) were decided by Judge
Jensen.
2
revocation proceeding in number 168 should have been dismissed because he
should not have had to keep a daily journal of his activities or report frequently to
his probation officer. We disagree. Probation officers clearly have the authority
and duty to supervise those under their care, and to keep informed about the
conduct and condition of those persons. See 18 U.S.C. § 3603(2), (3), (7); United
States v. Stephens, 424 F.3d 876, 880–81 (9th Cir. 2005). Of course, probation
officers cannot exercise discretion which has been conferred exclusively upon the
district court. See Stephens, 424 F.3d at 882–83 (number of drug tests); cf. United
States v. Duff, 831 F.2d 176, 178–79 (9th Cir. 1987) (number of drug tests before
Congress expressly conferred that authority on the district court). Here no
probation officer overreaching occurred; rather, the probation officer acted
reasonably to supervise a difficult and essentially unrepentant pedophile offender.
(3) Ballard then asserts that evidence of the falsehoods that resulted in his
conviction in number 283 should have been suppressed because his right against
self-incrimination as found in the Fifth Amendment to the United States
Constitution would otherwise be violated. We must also disagree with this
assertion. No doubt, even those on supervised release retain their Fifth
Amendment rights. See United States v. Antelope, 395 F.3d 1128, 1133 (9th Cir.
2005). But that avails Ballard nothing because the Fifth Amendment does not
3
protect lying,4 and does not protect persons whose statements may merely result in
revocation of probation proceedings.5 The required statements here were, clearly,
of the latter variety. The ensuing prosecution in number 283 was a result of his
falsehoods only.
(4)6 Ballard then objects to his sentence on the basis that in determining
the sentence in number 283 the district court erred in making the Sentencing
Guidelines calculation.7 We agree with that contention. Upon a conviction under
18 U.S.C. § 1001(a), the Guideline for fraud and deceit usually applies. See USSG
§2B1.1; USSG App. A. However, if the defendant’s conduct is “specifically
covered” by another Guideline, the other Guideline applies instead. USSG
§2B1.1(c)(3). The district court decided to use a Guideline entitled Obstruction of
4
See Brogan v. United States, 522 U.S. 398, 404–05, 118 S. Ct. 805, 810,
139 L. Ed. 2d 830 (1998); United States v. Gonzalez-Mares, 752 F.2d 1485,
1489–90 (9th Cir. 1985).
5
See Minnesota v. Murphy, 465 U.S. 420, 435 n.7, 104 S. Ct. 1136, 1146
n.7, 79 L. Ed. 2d 409 (1984); Gonzalez-Mares, 752 F.2d at 1489–90; see also
United States v. Phelps, 955 F.2d 1258, 1263 (9th Cir. 1992); cf. United States v.
Saechao, 418 F.3d 1073, 1077 (9th Cir. 2005).
6
This issue and the issues in paragraph (5) were decided by Judge
Coughenour.
7
All references to the Sentencing Guidelines in this disposition are to the
November 1, 2008, version thereof.
4
Justice8 which does not specifically cover Ballard’s offense. The government
argues that the Guideline does cover obstruction of civil investigations under the
Antitrust Civil Process Act.9 However, whatever else may be true about Ballard,
the conduct for which he was convicted is not related to that covered by the
Antitrust Civil Process Act. Thus, the district court erred. The error increased
Ballard’s offense level score from six10 to fourteen,11 which had the effect of
raising his Guideline range from a high of twelve months to a high of thirty-three
months.12 On its face that was not harmless. The district court itself specifically
stated that its ultimate sentence was “a product of the guideline calculations.” That
being so, we cannot say that the erroneous calculation did not influence the
sentence.13 Thus, we vacate the sentence in number 283 and remand.14
8
See USSG §2J1.2.
9
See 18 U.S.C. § 1505. There is no contention that Ballard’s conduct can be
brought under any other aspect of that Guideline. See USSG §2J1.2, comment.
(Statutory Provisions).
10
USSG §2B1.1(a)(2).
11
USSG §2J1.2(a).
12
USSG Ch.5, Pt.A. Ballard’s criminal history placed him in category IV.
13
The district court gave precious little further explanation other than to
mention that it did consider the 18 U.S.C. § 3553 factors and thought it particularly
necessary to protect the public (id. at § 3553(a)(2)(C)). Of course, the district court
(continued...)
5
(5) Finally, Ballard complains generally about the special supervised
release conditions in number 283 on the basis that the district court did not give a
sufficient explanation. We disagree with that contention. The court did accept the
recommendations in the Presentence Investigation Report and has broad discretion
in setting the supervised release terms without further discussion. See United
States v. Napulou, 593 F.3d 1041, 1044 (9th Cir. 2010); United States v. Riley, 576
F.3d 1046, 1048 (9th Cir. 2009); United States v. Daniels, 541 F.3d 915, 924 (9th
Cir. 2008). Beyond that, Ballard has not even presented any specific argument
about most of the conditions, and we will not seek to parse them. See Daniels, 541
F.3d at 925. As to the ones he does specifically argue, the parties agree that the
special residence condition (number 2) is improper; we will order it stricken. We
reject Ballard’s argument about the others, that is, the no contact condition
(number 5) is perfectly good,15 as is the sexually explicit materials condition
13
(...continued)
is not required to go into exquisite detail. See United States v. Carty, 520 F.3d
984, 992 (9th Cir. 2008) (en banc). However, its asthenic discussion here does not
help us to understand the basis of the sentence.
14
See United States v. Matthews, 278 F.3d 880, 885–86 (9th Cir. 2002) (en
banc).
15
See United States v. Bee, 162 F.3d 1232, 1235–36 (9th Cir. 1998); see also
United States v. Stoterau, 524 F.3d 988, 1008 (9th Cir. 2008).
6
(number 7),16 as is the treatment condition (number 10).17
As to appeal number 09-10237, AFFIRMED. As to appeal number 09-
10236, conviction AFFIRMED, but sentence VACATED and REMANDED.18
16
See United States v. Rearden, 349 F.3d 608, 619–20 (9th Cir. 2003); Bee,
162 F.3d at 1234–35; see also Daniels, 541 F.3d at 927–28.
17
See Stoterau, 524 F.3d at 1003–07; see also Riley, 576 F.3d at 1048.
18
We note, however, that we affirm the imposition of the special conditions
of supervised release, with the exception of the special residence condition
(number 2) which shall be stricken.
7