FILED
NOT FOR PUBLICATION JUL 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-30119
Plaintiff - Appellee, D.C. No. 2:12-cr-00008-DLC-1
v.
MEMORANDUM*
WAYNE ALAN PARTIN,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Argued and Submitted July 10, 2015
Portland, Oregon
Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.
Wayne Partin pled guilty to accessing with intent to view child pornography
in violation of 18 U.S.C. § 2252A(a)(5)(B). He appeals Special Condition 4 of his
ten years of supervised release, which forbids him from knowingly acquiring
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
materials that depict sexually explicit conduct as defined by 18 U.S.C.
§ 2256(2)(A). We have jurisdiction under 28 U.S.C. § 1291.
We review a challenge to a supervised release condition for an abuse of
discretion. United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006). “[W]e give
considerable deference to a district court’s determination of the appropriate
supervised release conditions,” recognizing that “a district court has at its disposal
all of the evidence, its own impressions of a defendant, and wide latitude.” Id.
(internal quotation marks omitted).
Although Special Condition 4 satisfied 18 U.S.C. § 3583(d)(1), the district
court did not have the benefit of United States v. Gnirke, 775 F.3d 1155, 1163-65
(9th Cir. 2015), when it rendered its decision in this case. Accordingly, we vacate
Special Condition 4 and remand for the district court to impose a condition
consistent with Gnirke.1
VACATED and REMANDED for further proceedings consistent with this
disposition.
1
Although Partin appeals only the first sentence of Special Condition 4 and
we find no error in the condition’s remaining provisions, we vacate the condition
in its entirety so the district court can consider it as a whole.
2 14-30119
FILED
USA v Wanye Alan Partin 14-30119 JUL 30 2015
MOLLY C. DWYER, CLERK
N.R. Smith, Circuit Judge, dissenting: U.S. COURT OF APPEALS
We are compelled by binding circuit precedent to affirm. The challenged
condition in this case is not overbroad and does not deprive Partin of more liberty
than is reasonably necessary to effectuate the terms of supervised release. Our
recent decision in United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), does not
overrule this precedent and is not controlling in this case. Therefore, I respectfully
dissent.
The special condition of supervised released imposed on Partin is a familiar
one. Indeed, as the district court noted when Partin objected to the imposition of
Special Condition 4, it was crafted to fit within the parameters of our case law. In
United States v. Rearden, 349 F.3d 608 (9th Cir. 2003), and United States v.
Daniels, 541 F.3d 915 (9th Cir. 2008), we upheld conditions of supervised release
that were identical to the special condition imposed on Partin in all material
respects. Those cases stand for the proposition that special conditions of
supervised release that define “sexually explicit conduct” by reference to 18 U.S.C.
§ 2256(2) do not restrict a defendant’s rights more than reasonably necessary to
effectuate the goals of supervised release and are not overbroad. See Rearden, 349
F.3d at 619–20; Daniels, 541 F.3d at 927. Rearden and Daniels remain good law
1
in our circuit, as no en banc court has overruled them and there is no intervening
higher authority that calls them into question.
The majority remands the case so that the district court can apply United
States v. Gnirke in the first instance. However, given our decisions squarely on
point in Rearden and Daniels, there is no need to apply Gnirke. As a decision of a
three-judge panel, the panel in Gnirke lacked the power to overrule Rearden and
Daniels and did not purport to do so. See Miller v. Gammie, 335 F.3d 889,
899–900 (9th Cir. 2003) (en banc). Accordingly, I would apply our binding
precedent and affirm.
Although the majority does not opine as to how the district court should
apply Gnirke, I urge the district court to consider the limited nature of that case
when deciding whether to change the special condition. As already noted, Gnirke
did not purport to overturn Rearden and Daniels. Instead, the Gnirke court
distinguished the case before it on two grounds: (1) the district court’s stated intent
to limit the scope of Gnirke’s condition to adult pornography; and (2) the
geographic scope of the limitation, which would have prohibited Gnirke from
frequenting libraries or department stores. Gnirke, 775 F.3d at 1161–1164.
We did not hold in Gnirke that a special condition of supervised release
barring possessing or viewing materials depicting sexually explicit conduct, as
2
defined by § 2256(2), must be limited only to child or adult pornography. The
Gnirke court framed its discussion with the observation that “[t]he district court
clearly stated its intention to restrict Gnirke’s access to what it referred to as
‘pornography.’” Id. at 1161. The Gnirke court then engaged in a discussion of the
condition’s overbreadth, but summarized as follows: “The district court intended to
restrict Gnirke’s access to ‘child and adult pornography,’ but by applying the
definition in 18 U.S.C. § 2256(2) to depictions of adult sexual activity, the
condition deprives Gnirke of more liberty than is reasonably necessary.” Id. at
1166. The district court’s intent cannot be read out of Gnirke and plays a key role
in that case’s analysis of the condition. Gnirke’s holding follows from that intent:
a condition that reached beyond child and adult pornography would restrict more
liberty than was reasonably necessary if the district court did not conclude that
such a broad restriction was required to effectuate the goals of supervised release.
The geographic scope of the condition also played a vital role in Gnirke’s
overbreadth analysis. The geographic scope was critical to distinguishing the case
from Rearden and Daniels. Id. at 1164. The risk that Gnirke would violate the
condition rose greatly with the addition of the overbroad geographic limitation,
heightening the dangers of overbreadth in the limitation on possessing and viewing
materials depicting sexually explicit conduct. Id. at 1165. There is no suggestion
3
in Gnirke that the court would have held that it was necessary to rewrite the entire
condition if the geographic limitation were more circumscribed.
When applying Gnirke, the district court should read the case in light of our
preexisting and still binding precedent in Rearden and Daniels. Gnirke must be
read to have distinguished those cases on some principle, and the grounds that I
have identified seem to me the best way to understand how Gnirke fits into our
jurisprudence on these difficult conditions.1 In light of the majority’s decision to
remand, it will be for the district court to determine whether Partin’s case is
distinguishable from Rearden and Daniels in light of Gnirke. Because I conclude
that Rearden and Daniels control, I respectfully dissent.
1
Gnirke also distinguished Rearden and Daniels on the basis that they were
decided on plain error review. Gnirke, 775 F.3d at 1164. Specifically, Gnirke
noted that the district courts in Daniels and Rearden did not have the benefit of
controlling circuit precedent at the time they imposed the conditions at issue. Id.
Regardless of whether Gnirke was correct in holding that the fact of plain error
review is a valid ground to distinguish prior precedent, we have controlling
precedent at issue here: Rearden and Daniels. The conclusion from those cases is
clear and unmistakable: defining sexually explicit conduct by reference to
§ 2256(2) does not render a special condition of supervised release categorically
overbroad. Gnirke could not overrule this conclusion, so it must be interpreted in a
way that preserves the binding rule.
4