NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 25 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-50353
Plaintiff - Appellee, D.C. No. 2:10-cr-00250-PA-1
v.
MEMORANDUM*
ISMAEL TORRES-FIGUEROA, AKA
Ismael Torres Figuero,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted August 5, 2011
Pasadena, California
Before: WARDLAW and BERZON, Circuit Judges, and WHYTE, Senior District
Judge.**
Torres-Figueroa appeals the district court’s imposition of a residency
restriction as a condition of his supervised release. The restriction, which was part
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ronald M. Whyte, Senior District Judge for the U.S.
District Court for Northern California, San Jose, sitting by designation.
of his sentence for illegal reentry after removal, prohibits him from residing
“within 2,000 feet of school yards, parks, public swimming pools, playgrounds,
youth centers, video arcade facilities, or other places primarily used by persons
under the age of 18.” We have jurisdiction pursuant to 18 U.S.C. § 3742, and we
vacate the condition and remand to the district court for resentencing.
We review the district court’s imposition of a condition of supervised release
for abuse of discretion. United States v. Daniels, 541 F.3d 915, 924 (9th Cir.
2008). A district court has the discretion to order special conditions of supervised
release pursuant to 18 U.S.C. § 3583(d). Under § 3583(d), a district court may
impose special conditions of supervised release, provided that they “are reasonably
related to the goal of deterrence, protection of the public, or rehabilitation of the
offender, and involve no greater deprivation of liberty than is reasonably necessary
for the purposes of supervised release.” Daniels, 541 F.3d at 924; United States v.
Rearden, 349 F.3d 608, 618 (9th Cir. 2003); United States v. T.M., 330 F.3d 1235,
1240 (9th Cir. 2003). The residency requirement imposed on Torres-Figueroa fails
to meet this standard, and we thus vacate it.
The basis for the district court’s imposition of the residency requirement on
Torres-Figueroa was his 1994 conviction for aggravated sexual assault of a child
under the age of 14. Relying upon outdated convictions, without more, is
insufficient to establish that a condition of supervised release is reasonably related
to promoting the goals of public protection and deterrence. T.M., 330 F.3d at 1240
(holding that predicating conditions of supervised release on twenty-year old sex
offense incidents was an abuse of discretion). This is particularly true where the
past offender has not committed any similar or related sex offenses in the
intervening years. See id., at 1240-41 (“The fact that [defendant] has lived the last
twenty years without committing a sex offense suggests that he no longer needs to
be deterred or shielded from the public.”). Torres-Figueroa’s 1994 sex offense,
committed seventeen years before he was sentenced for illegal reentry, is outdated
and thus too remote – particularly since there were no related incidents in the
intervening years – to establish a reasonable relationship between the residency
requirement and either deterrence, public safety, or rehabilitation.
The residency requirement also involves a greater deprivation of liberty than
is reasonably necessary for the purposes of supervised release. Neither the
probation officer, in the Presentence Investigation Report, nor the government, in
the plea agreement or any other filing, suggested that such a condition be imposed.
Both the probation officer and government, in assessing Torres-Figueroa’s risk of
recidivism and danger to the public, had thus concluded that any condition related
to the prior sex offense conviction was unnecessary. Moreover, the district court
failed to provide any explanation for imposition of this condition as it was required
to do. 18 U.S.C. § 3553(c); Rearden, 349 F.3d at 619. Accordingly, the district
court’s imposition of the residency restriction deprived Torres-Figueroa of more
liberty than was necessary for the purposes of supervised release.
VACATED and REMANDED for resentencing.