FILED
NOT FOR PUBLICATION JUL 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-17374
Plaintiff - Appellee, D.C. No. 4:11-cr-02726-RCC-
DTF-1
v.
KARL MODDERMAN, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Argued and Submitted July 6, 2015
San Francisco, California
Before: GRABER and WATFORD, Circuit Judges, and FRIEDMAN,** District
Judge.
Defendant Karl Modderman challenges the imposition of three special
conditions that apply to his lifetime term of supervised release, which will follow
the 120 months’ imprisonment that he is now serving for possession of child
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Paul L. Friedman, United States District Judge for the
District of Columbia, sitting by designation.
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Defendant did
not challenge the conditions at his sentencing hearing. Nearly a year later,
proceeding pro se, Defendant filed a motion for correction of clerical mistakes
pursuant to Federal Rule of Criminal Procedure 36. After the district court denied
that motion, this court issued an order construing Defendant’s Rule 36 motion as a
petition under 28 U.S.C. § 2255, premised on a claim that the specified conditions
violate due process.
We vacate this court’s September 17, 2013 order construing the Rule 36
motion as a § 2255 petition, vacate the district court’s denial of the Rule 36
motion, and remand to the district court for further proceedings. On remand, the
district court must inform Defendant of the consequences of recharacterizing his
Rule 36 motion as a § 2255 petition and must give him an opportunity to withdraw
or amend the motion pursuant to the procedures outlined in Castro v. United States,
540 U.S. 375, 382 (2003). If, after receiving the Castro warnings, Defendant
wishes to proceed, the district court must recharacterize the Rule 36 motion as a
§ 2255 petition.
We express no opinion on the merits of Defendant’s challenge or on the
question whether that challenge was procedurally defaulted. But we note that, in
the Ninth Circuit, a defendant cannot, through a plea agreement, waive the right to
2
challenge a sentence that violates the Constitution. United States v. Watson, 582
F.3d 974, 977 (9th Cir. 2009).
We also note, for the benefit of the district court on remand, that the
government has conceded the following either in its briefing to this court or at oral
argument: (1) with respect to Special Condition 12, the sentencing court did not
explain the need for the extensive curtailment of liberty inherent in a lifetime
curfew; (2) with respect to Special Condition 13, it is overbroad to require the
wearing of undergarments and appropriate outer clothing "at all times . . . in the
home," regardless of the presence of others; and (3) with respect to Special
Condition 18, it is not clear which relationships are sufficiently "emotionally
close," "romantic," or "intimate" to trigger the disclosure requirement.
VACATED and REMANDED.
3