United States v. Scott Sperling

FILED
NOT FOR PUBLICATION
OCT 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50342

Plaintiff-Appellee, D.C. No.
2:06-cr-00911-ODW-1
v.

SCOTT ALLEN SPERLING, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding

Argued and Submitted October 5, 2017
Pasadena, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,**
District Judge.

Scott Allen Sperling appeals the district court’s revocation of his supervised

release and imposition of five years additional imprisonment under 18 U.S.C.

§ 3583(k), after finding Sperling had violated the terms of his supervised release

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
by possessing or accessing with intent to view images of child pornography. We

have jurisdiction under 18 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

1. The district court did not clearly err in its factual findings, see United

States v. Lomayaoma, 86 F.3d 142, 146 (9th Cir. 1996), nor abuse its discretion in

revoking Sperling’s supervised release, see United States v. Thum, 749 F.3d 1143,

1145 (9th Cir. 2014). The Government met its burden to prove Sperling possessed

or accessed with intent to view images of child pornography by a preponderance of

the evidence. Id. at 1145-46 (quoting United States v. King, 608 F.3d 1122, 1129

(9th Cir. 2010)). As such, the district court’s conclusion was sufficient; not

“illogical, implausible, or without support in the record.” United States v. Spangle,

626 F.3d 488, 497 (9th Cir. 2010).

2. Plain error review applies to Sperling’s claim that his sentence violated

his Sixth Amendment rights, because he failed to raise the issue below. United

States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012). Under plain error review,

18 U.S.C. § 3583(k) is not obviously unconstitutional. Supreme Court precedent

and this Court’s precedent hold that the Sixth Amendment does not apply to

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revocation proceedings.1 Morrissey v. Brewer, 408 U.S. 471, 480 (1972) (“[T]he

revocation of parole is not part of a criminal prosecution and thus the full panoply

of rights due a defendant in such a proceeding does not apply to parole

revocations.”); Johnson v. United States, 529 U.S. 694, 701 (2000)

(“[P]ostrevocation penalties [are attributed] to the original conviction.”); Spangle,

626 F.3d at 494 (citing Brewer, 408 U.S. at 480) (“[T]he Sixth Amendment has no

application to supervised release proceedings.”); United States v.

Gavilanes-Ocaranza, 772 F.3d 624, 628 (9th Cir. 2014) (“We have held that the

supervised release system under 18 U.S.C. § 3583, including revocation of that

release and imposition of additional prison time as a result of a violation of a term

of the release, does not violate a defendant’s right to trial by jury.”). Thus, the

district court did not commit a clear or obvious legal error in sentencing Sperling

to five years’ imprisonment for violating the terms of his supervised release.

AFFIRMED.

1
There is no plain error where this court and the Supreme Court have not
spoken on an issue and the authority in other circuits is split, United States v.
Thompson, 82 F.3d 849, 855 (9th Cir. 1996), much less where there was no
contrary authority at the time of sentencing.
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