NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50482
Plaintiff-Appellee, D.C. No.
5:14-cr-00103-JGB-1
v.
KELLY JOHN GARRETT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted November 14, 2018
Pasadena, California
Before: PAEZ, PARKER,** and CLIFTON, Circuit Judges.
Kelly Garrett appeals his sentence following his conviction on one count of
wire fraud under 18 U.S.C. §1343. He challenges the special conditions of
supervised released imposed by the district court. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a) and we affirm in part, vacate in part, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, United States Circuit Judge for
the U.S. Court of Appeals for the Second Circuit, sitting by designation.
remand.
“A district judge may impose any supervised release condition she deems
appropriate, subject to three primary constraints. First, the condition must be
reasonably related to the nature and circumstances of the offense; the history and
characteristics of the defendant; or the sentencing-related goals of deterrence,
protection of the public, or rehabilitation. 18 U.S.C. §§ 3583(d)(1), 3553(a)(1),
(a)(2)(B)-(D). Second, the condition must be consistent with the Sentencing
Commission’s policy statements. § 3583(d)(3). And finally, the condition may
involve no greater deprivation of liberty than is reasonably necessary to serve the
goals of supervised release. § 3583(d)(2).” United States v. LaCoste, 821 F.3d
1187, 1190–91 (9th Cir. 2016) (internal quotation marks and case citations
omitted).
Garrett argues that three conditions of his supervised release pertaining to
his computer use—Conditions Nine, Ten, and Eleven (collectively, the “computer-
related conditions”)—are not reasonable. The record shows that Garrett used
email to communicate materially false information to investors. Thus, the
computer-related conditions are reasonably related to the sentencing-related goals
of deterrence and protection of the public.
The computer-related conditions are not akin to those we rejected in United
States v. Sales, 476 F.3d 732 (9th Cir. 2007) and United States v. Barsumyan, 517
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F.3d 1154 (9th Cir. 2008) because they do not require Garrett to seek permission
from his probation officer before using a computer. And, they are not like those
we rejected in United States v. LaCoste, 821 F.3d at 1192 because they do not
prohibit him from using the internet without permission. Although Garrett argues
that Condition Eleven is too restrictive because it allows for monitoring of “any
and all activity on his computer,” we read this condition to be limited to internet
activity or use; “computer activities not related to the Internet are not to be
monitored.” See United States v. Quinzon, 643 F.3d 1266, 1272 (9th Cir. 2011).
During the sentencing hearing, the district court modified proposed
Condition Four from prohibiting Garrett from engaging in any business involving
the solicitation of funds to a prohibition from engaging in any business involving
the solicitation of investments. The written judgment, however, prohibits the
solicitation of funds. Garrett argues, and the government agrees, that the judgment
should be vacated so the district court can correct Condition Four to conform to the
oral pronouncement. Therefore, we vacate Condition Four and remand to the
district court so it may correct the condition to conform to the oral pronouncement.
See United States v. Jones, 696 F.3d 932, 938 (9th Cir. 2012) (internal quotation
marks and citations omitted) (“In cases where there is a direct conflict between an
unambiguous oral pronouncement of sentence and the written judgment . . . the
oral pronouncement, as correctly reported, must control.”).
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AFFIRMED in part; VACATED in part; REMANDED.
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