FILED
NOT FOR PUBLICATION JUN 09 2011
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. 09-30392
Plaintiff - Appellee, D.C. No. 2:08-cr-00215-EJL
v.
MEMORANDUM *
DAVID RICHARD PIERCE,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
David Richard Pierce appeals from the 97-month sentence imposed
following his guilty-plea conviction for two counts of possession of sexually
explicit images of minors, in violation of 18 U.S.C. § 2252(a)(4)(B). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm the custodial sentence, but
*
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).
remand for resentencing as to some of Pierce’s supervised release conditions.
Pierce first contends that his sentence is procedurally unreasonable. This
argument is belied by the record. The court correctly calculated the Guidelines
range; stated that the Guidelines were not mandatory; considered the 18 U.S.C.
§ 3553(a) factors; and adequately explained the sentence selected, including a
discussion of Pierce’s mitigation arguments. See United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc). Moreover, the record shows that the court did
not base the length of Pierce’s sentence on his need for mental health treatment.
Pierce next contends that his sentence is substantively unreasonable based
on his history of abuse and mental illness. In light of the totality of the
circumstances and the 18 U.S.C. § 3553(a) factors, we conclude that the district
court did not abuse its discretion in imposing a sentence at the bottom of the
Guidelines range. See Gall v. United States, 552 U.S. 38, 51 (2007).
Pierce finally contends that some of the supervised release conditions
contained in the written judgment–specifically, the last ten conditions described in
the “special conditions of supervision”–were unlawfully imposed because they
were not contained in the oral pronouncement of sentence. The district court’s oral
pronouncement was ambiguous as to which of these conditions it intended to
impose, resulting in the denial of Pierce’s right to be present for the imposition of
2 09-30392
this part of his sentence. See United States v. Napier, 463 F.3d 1040, 1043 (9th
Cir. 2006) (ambiguous oral sentence indicating that the written judgment would
include unspecified conditions of supervised release resulted in denial of
defendant’s right to be present at his sentencing). Accordingly, we remand for
resentencing with respect to the contested supervised release conditions. See id. at
1043-44.
AFFIRMED in part; VACATED in part and REMANDED.
3 09-30392