NOT FOR PUBLICATION FILED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. 17-10505
Plaintiff-Appellee, D.C. No.
2:14-cr-00340-APG-PAL-1
v.
JOHNSTON BLACKHORSE, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Submitted December 21, 2018**
San Francisco, California
Before: M. SMITH, NGUYEN, and BENNETT, Circuit Judges.
Johnston Blackhorse appeals the district court’s imposition of a special
condition of supervised release (Special Condition 4), as well as its finding that
Blackhorse violated federal obscenity statutes during supervised release. We
affirm.
*
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).
1. The district court did not plainly err in fashioning Special Condition 4. We
have repeatedly affirmed similar conditions of supervised release. See, e.g., United
States v. Daniels, 541 F.3d 915, 927–28 (9th Cir. 2008); United States v. Rearden,
349 F.3d 608, 618–20 (9th Cir. 2003); United States v. Bee, 162 F.3d 1232, 1234–
35 (9th Cir. 1998). Thus, the district court could not have plainly erred. See
United States v. Gnirke, 775 F.3d 1155, 1164 (9th Cir. 2015). And because
Special Condition 4 extends to material depicting and/or describing simulated
sexually explicit conduct involving children but not adults, it does not suffer from
the overbreadth concerns that we articulated in Gnirke. See id. at 1163. For
substantially the same reasons articulated in Daniels, Rearden, and Bee, we affirm
the district court’s imposition of Special Condition 4.1
2. The district court did not abuse its discretion in finding by a preponderance
of the evidence that Blackhorse violated the obscenity statutes. Before the district
court, Blackhorse did not clearly argue that his drawings are not obscene under
Miller v. California, 413 U.S. 15, 24–25 (1973). Nor did Blackhorse make an
evidentiary objection concerning the district court’s obscenity finding. See United
States v. Sesma-Hernandez, 253 F.3d 403, 409 (9th Cir. 2001). In any event, the
district court clearly articulated its findings that Blackhorse’s drawings are obscene
1
We also hold that the word “describing”—as used in Special Condition 4—
is not unconstitutionally vague.
2
and that Blackhorse violated the obscenity statutes during supervised release. See
id. Even assuming the district court did not sufficiently articulate these findings,
any such error was harmless. See United States v. Perez, 526 F.3d 543, 547 (9th
Cir. 2008).
AFFIRMED.
3