FILED
NOT FOR PUBLICATION AUG 11 2011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. 08-10108
Plaintiff - Appellee, D.C. No. 3:06-CR-00991-MHM-1
v.
MEMORANDUM *
JIMI ADAY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Mary H. Murguia, District Judge, Presiding
Argued and Submitted August 8, 2011
San Francisco, California
Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.
Jimi Aday (“Aday”) appeals the district court’s sentence—20 years in prison
followed by a lifetime term of supervised release with sex offender
treatment—following Aday’s guilty plea to attempted aggravated sexual abuse in
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violation of 18 U.S.C. §§ 1153, 2241(a), and 2246. We have jurisdiction pursuant
to 28 U.S.C. § 1291, and we affirm.1
The appellate waiver in Aday’s plea agreement is unenforceable because the
conditions of supervised release imposed by the district court are inconsistent with
the terms of his plea agreement. See United States v. Bibler, 495 F.3d 621, 624
(9th Cir. 2007). Nonetheless, Aday’s contentions are unpersuasive.
First, the district court did not err in sentencing Aday to a lifetime term of
supervised release. The district court reasonably found—because of the nature and
severity of the offense, the need to protect the community, and the need to treat
possible sexually deviant behaviors—that lifetime supervised release was
appropriate. In fact, the district court here provided a more expansive explanation
of its sentence than did the district court in United States v. Cope, 527 F.3d 944
(9th Cir. 2008)—where this court upheld a lifetime term of supervised release for a
man convicted of possessing child pornography.
Second, Aday did not object to plethysmograph testing at sentencing and,
thus, the imposition of that condition is reviewed for plain error. Reversal under
the plain error standard is appropriate only where the error “affected the outcome
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The parties are familiar with the facts of the case, so we repeat them here
only to the extent necessary to explain our decision.
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of the district court proceedings” and “seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725,
734, 736 (1993). Aday cannot satisfy this burden; both the district court and the
probation office determined, based on significant evidence in the record, that sex
offender treatment (including plethysmograph testing) was necessary to protect the
public from the extreme danger that Aday presents. Thus, there is little doubt that
the district court would have imposed this condition even if forced to articulate its
reasoning on the record, as required by United States v. Weber, 451 F.3d 552, 568
(9th Cir. 2006).
Third, the district court’s requirement that Aday take all prescribed
medication as part of his sex offender treatment is also valid, so long as it is
construed narrowly and does not include any medication which implicates a
“particularly significant liberty interest.” See Cope, 527 F.3d at 955. A district
court may not require a defendant on supervised release to take medication (such
as antipsychotics) which “implicates a particularly significant liberty interest,”
unless it makes “on-the-record, medically-grounded findings that court-ordered
medication is necessary to accomplish one or more of the factors listed in [18
U.S.C.] § 3583(d)(1),” and “that the condition involves no greater deprivation of
liberty than is reasonably necessary.” Id. Here, the district court did not make the
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required on-the-record findings. Therefore, the “all-encompassing medication
condition must necessarily be understood as limited to those medications that do
not implicate a particularly significant liberty interest of the defendant.” Id.
However, if Aday’s future treatment does require medication which implicates a
significant liberty interest—such as treatment of his Asperger’s syndrome or
schizoid personality with antipsychotics—the district court may, at that time,
amend the terms of the supervised release and provide the medically-grounded
findings required by Cope.
Finally, the district court here did not improperly delegate its authority to the
probation officer. Under United States v. Rearden, 349 F.3d 608 (9th Cir. 2003), a
district court may delegate to probation officers the authority to select the type and
extent of sex offender and mental health treatment.
AFFIRMED.
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