FILED
NOT FOR PUBLICATION FEB 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30374
Plaintiff - Appellee, DC No. CR 1:09-00254 BLW
v.
MEMORANDUM *
MICHAEL JAMES SHARP,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, Chief District Judge, Presiding
Argued and Submitted January 11, 2012
Seattle, Washington
Before: TASHIMA, GRABER, and RAWLINSON, Circuit Judges.
Michael James Sharp, a convicted sex offender, appeals several conditions
of supervised release imposed following his guilty-plea conviction for felon
firearm possession. We have jurisdiction pursuant to 28 U.S.C. y 1291. We affirm
in part, reverse in part, and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. Sharp first contends that the conditions imposed on him were
premised on disputed facts in the presentence investigation report ('PSR') about
which the court had made no findings. But, although Fed. R. Crim. P. 32 would
have required the court to rule on 'specific factual objections' to the PSR, United
States v. Stoterau, 524 F.3d 988, 1011 (9th Cir. 2008), Sharp made no such
objections. Therefore, the trial court was entitled to accept the PSR's factual
assertions as true. See Fed. R. Crim. P. 32(i)(3)(A); United States v. Ameline, 409
F.3d 1073, 1085 (9th Cir. 2005) (en banc) ('[T]he district court may rely on
undisputed statements in the PSR at sentencing.').
2. Sharp next objects to several special conditions imposed on him on
the ground that they are excessive. This court reviews for abuse of discretion the
imposition of conditions of supervision. Stoterau, 524 F.3d at 1002. Although in
this context the court's discretion is 'wide,' it is not 'unfettered.' United States v.
T.M., 330 F.3d 1235, 1239-40 (9th Cir. 2003). Conditions must be substantively
reasonable - that is, be '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. Id. at
1240 (internal quotation marµs omitted). They must also be imposed in a
procedurally acceptable fashion; if the justification for a condition is not 'apparent
2
from the record,' the district court must spell it out at sentencing. United States v.
Blinµinsop, 606 F.3d 1110, 1119 (9th Cir. 2010) (emphases omitted), cert. denied,
2012 WL 33629 (U.S. Jan. 6, 2012); see United States v. Rudd, 662 F.3d 1257,
1260-61 (9th Cir. 2011).
(a) The condition requiring that Sharp undergo a sex offender evaluation,
and the condition requiring that Sharp receive treatment for sexual deviancy,
should his probation officer direct it, have no apparent justification in the record,
and the district court did not provide one. These conditions are not reasonably
related to the firearm possession offense of which Sharp was convicted; nor are
they reasonably related to his past violations of court-ordered conditions, none of
which involved sexual behavior. See United States v. Betts, 511 F.3d 872, 878 (9th
Cir. 2007) (conditions must be based on an 'individualized' assessment of 'the
nature and circumstances of the offense and the history and characteristics of the
defendant' (internal quotation marµs omitted)). Moreover, Sharp's sex offense
was more than a decade old at the time of sentencing, maµing it too remote to
justify the conditions by itself. See T.M., 330 F.3d at 1240-41. These conditions
3
are therefore vacated.1 On remand, the district court may consider reimposing the
conditions, but would have to justify them with specific, relevant findings
supported by the record. See Rudd, 662 F.3d at 1260-63 (vacating a special
condition on the ground that it appeared arbitrary and remanding for the district
court to further explain or reconsider the condition).
(b) The other three challenged special conditions,2 which heavily restrict
Sharp's contact with children, have some basis in the record. Sharp's previous
violations of court orders, though they do not reflect improper sexual behavior,
suggest a willingness to endanger minors and thus fully support two of the
restrictions on Sharp's access to them. But the restriction that prohibits residency
or loitering within 100 feet of areas primarily used by minors goes too far, at least
on this record, because it provides no opportunity for the probation officer to grant
an exemption. See Blinµinsop, 606 F.3d at 1121-22 (vacating blanµet prohibition
and remanding for the district court to consider tailoring the restriction to allow
1
The treatment condition is vacated only to the degree that it refers to
sexual deviancy, i.e., the portion that reads, 'including but not limited to
cognitive/behavioral treatment for sexual deviancy by a qualified mental health
professional.'
2
At oral argument, Sharp's counsel withdrew a challenge to another
special condition, which requires polygraph testing, except to the extent of such
testing in connection with the now-vacated conditions of sex offender evaluation
and treatment.
4
access based on permission from the probation officer); id. at 1121 ('The probation
officer, who has regular contact with a sex offender on supervised release, in
consultation with treatment provider(s), is in the best position to determine the
appropriate contact with minors for a released defendant convicted of a
child-pornography crime, even with the defendant's children.'). This condition is
vacated and remanded for the district court to consider tailoring it to allow access if
the probation officer grants permission.
(c) Last, Sharp challenges the imposition of a standard condition that he
not associate with µnown felons, without maµing any exception for his wife (a
µnown felon), and without giving any reasons why. To the extent that this
condition relates to Sharp's wife, it is not materially distinguishable from United
States v. Napulou, 593 F.3d 1041 (9th Cir. 2010), which held that a condition
prohibiting contact between the defendant and her 'life partner' implicated a
'significant liberty interest' and thus required the district court to examine the
pair's 'present circumstances and relationship' and to 'articulate' the reasons for
imposing the condition. Id. at 1046-47; see United States v. Daniels, 541 F.3d 915,
924 (9th Cir. 2008).
Here, as in Napulou, there is no record evidence about the present
circumstances and relationship between Sharp and his wife, no evidence as to
5
whether contact between the two would raise the odds of Sharp's returning to a
criminal life, and no findings on these matters. That Sharp's wife has minor
children is not enough, standing alone, to proscribe contact with her without
explanation. See United States v. Weber, 451 F.3d 552, 566-67 (9th Cir. 2006)
('Th[e] tailoring requirement is all the more important in cases . . . where a
particularly strong liberty interest is at staµe.'). The condition is therefore vacated
to the extent it prohibits contact with Sharp's wife. The district court may
reimpose the condition if it includes an exception for Sharp's wife or provides
adequate reasons why no such exception is justified.
REVERSED and REMANDED.
6
FILED
U.S. v. Sharp, Case No. 10-30374 FEB 24 2012
Rawlinson, Circuit Judge, concurring: MOLLY C. DWYER, CLERK
U.S . CO U RT OF AP PE A LS
I concur in the result.