NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 26 2017
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 15-10419
Plaintiff-Appellee, D.C. No.
2:14-cr-00119-DGC-1
v.
CHARLES WILLIAM BUNNELL II, AKA MEMORANDUM*
Charles Bunnell,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David G. Campbell, District Judge, Presiding
Submitted September 12, 2017**
San Francisco, California
Before: KOZINSKI and FRIEDLAND, Circuit Judges, and BENNETT,*** District
Judge.
*
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 Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
Charles Bunnell appeals his conviction for conspiracy to engage in sex
trafficking by force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a) and
1594(c), and he challenges several conditions of his supervised release.
We assume without deciding that Bunnell did not waive his right to
challenge his conviction or sentence and proceed to the merits of Bunnell’s appeal.
See United States v. Jacobo Castillo, 496 F.3d 947, 955-57 (9th Cir. 2007) (en
banc) (holding that the enforceability of an appeal waiver and the preclusive effect
of a plea agreement are not jurisdictional questions).
For the reasons in the district court’s order, the Government did not engage
in outrageous conduct.
Bunnell also argues that several conditions of his supervised release are
illegal. See United States v. Watson, 582 F.3d 974, 987 (9th Cir. 2009) (holding
that a defendant may challenge a supervised-release condition as illegal despite an
appeal waiver). Because he did not raise this challenge before the district court,
we review for plain error. See id. at 981. The conditions he challenges are
appropriate in light of his offense and characteristics, and we reject his vagueness
objections.1 We find plain error in only one condition. The district court ordered
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This is true, in particular, with respect to the condition requiring Bunnell to
“attend and participate in a sex offender treatment program and sex offense
specific evaluations as approved by the probation officer.” Bunnell contends that
this condition is vague because it leaves the probation officer with discretion to
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Bunnell to “support [his] dependents and meet other family responsibilities.” It is
undisputed that Bunnell has no dependents, the parties have identified no relevant
“family responsibilities,” and the district court did not explain its reasons for
imposing this condition. Nor can we see why this condition is “reasonably related”
to “the nature and circumstances of the offense and the history and characteristics
of the defendant,” as required by 18 U.S.C. §§ 3563(b) and 3553(a)(1). This
condition is reversed.
In addition, we remand to allow the district court to conform the written
judgment to the oral pronouncement of the sentence with respect to the two
conditions identified on pages 37 and 38 of Bunnell’s opening brief and on page 54
of the Government’s answering brief. If Bunnell wishes to clarify the condition
prohibiting him from leaving “the judicial district,” he should, as the government
order him to undergo plethysmographic testing or receive inpatient treatment. At
this point, that possibility is speculative at most. The judgment does not
contemplate those treatments; the Government agrees that Bunnell cannot be
forced to undergo plethysmographic testing or inpatient treatment on this record,
and we are aware of no authority requiring district courts to compose written
judgments that eliminate all potential forms of treatment not contemplated at the
time of sentencing. Bunnell has therefore not shown, as he must here, see Watson,
582 F.3d at 981, that any error in this condition affected his substantial rights.
In addition, because we find that none of the challenged conditions are vague, we
need not consider the implications of Beckles v. United States, 137 S. Ct. 886
(2017), if any, for Bunnell’s vagueness objections.
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suggests, either seek the probation officer’s permission or move the district court to
modify the condition under 18 U.S.C. § 3583(e)(2).
AFFIRMED in part, REVERSED in part, and REMANDED.
4