NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50076
Plaintiff-Appellee, D.C. No.
3:13-cr-03109-LAB-1
v.
ARMANDO MENDOZA-PERALTA, MEMORANDUM *
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted May 11, 2017**
Pasadena, California
Before: PREGERSON and FRIEDLAND, Circuit Judges, and DONATO,***
District Judge.
Armando Mendoza-Peralta appeals for the second time his sentence for
receiving images of minors engaged in sexually explicit conduct in violation of 18
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable James Donato, United States District Judge for the
Northern District of California, sitting by designation.
U.S.C. § 2252(a)(2). We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291, and we vacate in part and remand.
1. Mendoza-Peralta challenges a special condition of supervised release
restricting his access to certain materials depicting sexually explicit conduct
involving adults. Specifically, the condition prohibits him from possessing
“explicit sexually stimulating depictions of adult sexual conduct that he would
access via the internet,” but permits him to view such materials offline “as deemed
appropriate by his probation officer.” Mendoza-Peralta contends that the district
court committed both procedural and substantive errors in imposing that condition
and objects to discrepancies between the condition the district court imposed orally
at resentencing and the written judgment. To the extent the oral and written
conditions diverge, the district court’s unambiguous oral sentencing order controls.
See United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006). We accordingly
review that iteration of the condition.
2. The district court did not procedurally err by inadequately explaining
its imposition of the challenged condition or by basing that condition on clearly
erroneous facts.
The oral condition limits Mendoza-Peralta’s ability to access only certain
pornographic materials—not literary, artistic or cultural depictions of nudity or sex
more generally. Because that restriction does not implicate a “particularly
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significant liberty interest,” the sentencing court was not required to comply with
heightened procedural requirements. United States v. Gnirke, 775 F.3d 1155,
1159-60 (9th Cir. 2015) (quoting United States v. Wolf Child, 699 F.3d 1082, 1090
(9th Cir. 2012)) (explaining that “access to pornography is clearly not a liberty
interest on par with such significant interests as” those that trigger heightened
procedural requirements). The court therefore only needed to provide an
explanation sufficient to “‘permit meaningful appellate review’ and
‘communicate[] that the parties’ arguments have been heard, and that a reasoned
decision has been made.’” Id. at 1159 (quoting United States v. Carty, 520 F.3d
984, 992 (9th Cir. 2008) (en banc)).
Here, the district court did so by explaining that the challenged condition
was intended to avoid the risk that viewing adult pornography would lead
Mendoza-Peralta to reoffend. Such discussion makes clear that the court believed
the condition was reasonably necessary, in light of “the nature and circumstances
of the offense and the history and characteristics of the defendant,” to “protect the
public from further crimes of the defendant.” See 18 U.S.C. § 3553(a)(1), (2); 18
U.S.C. § 3583(d)(1). That conclusion was neither illogical nor implausible, and
the district court appropriately relied on its experience sentencing similar offenders
in reaching that determination. See United States v. Autery, 555 F.3d 864, 875 (9th
Cir. 2009).
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3. The district court did not substantively err. We previously remanded
for the district court to clarify the scope of the challenged condition, United States
v. Mendoza-Peralta, 624 F. App’x 456, 458 (9th Cir. 2015) (unpublished)
(Mendoza-Peralta I), and the court did so. At resentencing, the district court
reaffirmed its intent to restrict only Mendoza-Peralta’s ability to access certain
pornographic materials and imposed a modified special condition that closely
tracks language from United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), that
we cited approvingly in Mendoza-Peralta I. Gnirke controls our analysis and
compels the conclusion that the district court did not abuse its discretion in
imposing the challenged condition.
4. Although the district court did not err in imposing the oral sentencing
order, we are concerned that confusion might arise from the discrepancies between
that oral ruling and the written judgment, particularly given the length of Mendoza-
Peralta’s term of supervised release. We therefore vacate the written judgment to
the extent that it conflicts with the oral condition and remand for the limited
purpose of allowing the court to conform the judgment to its prior oral sentence.
VACATED IN PART AND REMANDED.
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