NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 21 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10124
Plaintiff-Appellee, D.C. No. 1:13-cr-00151-HG-1
v.
SHELDON KOYANAGI, AKA Shelden MEMORANDUM*
Koyanagi,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Submitted January 19, 2022**
Before: SILVERMAN, CLIFTON, and HURWITZ, Circuit Judges.
Sheldon Koyanagi appeals from the district court’s judgment and challenges
the 18-month sentence and two special conditions of supervised release imposed
upon revocation of supervised release. We have jurisdiction under 28 U.S.C.
*
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). Appellant’s motion to
expedite submission of this appeal without oral argument is granted.
§ 1291, and we affirm.
Koyagani first contends that the district court failed to consider his
arguments and based the sentence on impermissible sentencing factors. The record
belies these claims. The district court considered Koyagani’s arguments for a
within-Guidelines sentence and thoroughly explained its reasons for the upward
variance. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
The court’s explanation reflects that it properly imposed the sentence to sanction
Koyanagi for breaching the court’s trust through, among other things, engaging in
extreme attempts to circumvent supervision, rather than to punish him or promote
respect for the law. See United States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir.
2007). Moreover, contrary to Koyanagi’s contention, the sentence is substantively
reasonable in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of
the circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007).
Koyanagi next challenges the special condition of supervised release
requiring him to submit to periodic suspicionless searches of his electronic data.
Koyanagi’s constitutional challenges to this condition are unavailing. See United
States v. Bare, 806 F.3d 1011, 1018 n.4 (9th Cir. 2015) (Fourth Amendment does
not prohibit searches of federal supervisees’ electronic data); United States v. Betts,
511 F.3d 872, 876 (9th Cir. 2007) (suspicionless searches of federal supervisees do
not violate Fourth Amendment). Moreover, the court did not abuse its discretion in
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imposing the condition because (1) it is properly limited to devices in Koyanagi’s
control, see Bare, 806 F.3d at 1018; and (2) the record supports the court’s finding
that the condition was warranted because Koyanagi’s violation involved the use of
a social networking service, see id. at 1017 (district court may impose electronic
device search condition as long as it makes a factual finding establishing “some
nexus” between computer use and one of the goals of sentencing).
Finally, Koyanagi challenges the special condition of supervised release
requiring him to submit to drug testing in connection with drug treatment. The
court did not plainly err in imposing this condition. See United States v. Maciel-
Vasquez, 458 F.3d 994, 996 (9th Cir. 2006). Drug testing is a mandatory condition
of supervised release, see 18 U.S.C. § 3583(d)(2), and although Koyanagi appears
to have no recent history of substance abuse, it is apparent that the district court
adopted probation’s recommendation to impose the challenged condition in light of
Koyanagi’s history of substance abuse and two federal drug convictions. See
United States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (district court
need not state reasons for supervised release condition if its reasoning is apparent
from the record).
We do not consider matters not distinctly raised and argued in the opening
brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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