NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50239
Plaintiff-Appellee, D.C. No.
5:17-cr-00219-JAK-2
v.
RAYMOND WITZKE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted January 7, 2019
Pasadena, California
Before: TASHIMA and WATFORD, Circuit Judges, and ZOUHARY,** District
Judge.
Raymond Witzke challenges three probation conditions imposed after his
conviction for mail theft in violation of 18 U.S.C. § 1708. We affirm as to two of
the conditions and remand for the district court to modify the third.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
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1. The district court did not procedurally err in imposing Condition 3, the
residential drug treatment condition. The district court sufficiently explained its
conclusion that residential drug treatment—rather than outpatient treatment—was
reasonably necessary, citing Witzke’s history of drug abuse, the instability in
Witzke’s life, and the breach of trust between Witzke and the court resulting from
Witzke’s having absconded from the residential drug treatment program that he
was ordered to complete as a condition of his pretrial release. Contrary to
Witzke’s argument, the record indicates that the district court did consider whether
the attendant deprivations of inpatient treatment were appropriate in light of
Witzke’s family relationships, as that consideration contributed to the court’s
decision to modify the condition by granting the probation officer discretion to
shorten the length of the treatment. Witzke’s argument that the court applied an
incorrect legal standard in justifying the condition by stating that inpatient
treatment would be more “effective” than outpatient treatment ignores that relative
effectiveness is one factor the court was statutorily required to consider, see 18
U.S.C. § 3553(a)(2)(D), and that the court had articulated the correct legal standard
before imposing the sentence.
2. The residential drug treatment condition is not substantively
unreasonable. The condition is reasonably related to the goals of deterrence and
protection of the public, given that Witzke’s criminal history is linked to drug
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abuse. See U.S.S.G. § 5B1.3(b)(1)(C) & (D). The condition is reasonably
necessary to achieve those goals in light of Witzke’s history of drug abuse, which
includes drug use in violation of a court order two months before sentencing, and
the fact that Witzke had agreed to participate in—but then absconded from—a
residential drug treatment program months earlier. See U.S.S.G. § 5B1.3(b)(2).
3. The district court did not plainly err in imposing Condition 11, the
computer-search condition. In United States v. Bare, 806 F.3d 1011, 1017 (9th
Cir. 2015), we held that the district court did not abuse its discretion in imposing a
suspicionless computer-search condition because the district court articulated a
nexus between the condition and the goals of supervised release. The district court
in this case made no explicit nexus finding, but our holding in Bare does not
establish plain error here. Unlike the condition at issue in Bare, the condition in
this case permits a search of Witzke’s computer only upon reasonable suspicion
both that Witzke has violated one of the conditions of his probation and that his
computer contains evidence of the violation. The required nexus between the need
for the search and the goals of probation is thus apparent from the face of the
condition itself. Witzke emphasizes that his offense of conviction did not involve
computer use, but in Bare we held that the law does not require a direct nexus
between the offense conduct and the computer-search condition. Id. at 1019.
4. We vacate Condition 12, the notification condition imposed in this case,
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because it is overly broad in one respect. We deemed a differently worded version
of this condition impermissibly vague in United States v. Evans, 883 F.3d 1154,
1163–64 (9th Cir. 2018). The language of the condition in this case does mitigate
at least somewhat the notice and discretion concerns we identified in Evans.
Unlike the condition in Evans, the condition imposed in this case requires the
probation officer to provide Witzke with notice of the specific disclosures he is
required to make, and it cabins the probation officer’s discretion by making clear
that the probation officer may not simply direct Witzke to notify a broad class of
persons about a broad category of risk. But the condition in this case does not
explicitly require that the risks requiring disclosure be posed by the defendant.
The district court may remedy this deficiency on remand by modifying the
condition to conform to the Sentencing Guidelines’ current standard notification
condition, U.S.S.G. § 5B1.3(c)(12) (“If the probation officer determines that the
defendant poses a risk to another person . . . .”), or the standard notification
condition in the Central District of California’s General Order No. 18-10 (“[T]he
defendant must notify specific persons and organizations of specific risks posed by
the defendant . . . .”).
AFFIRMED in part, VACATED in part, and REMANDED.