FILED
NOT FOR PUBLICATION FEB 26 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50243
Plaintiff - Appellee, D.C. No. 2:09-cr-00586-ODW-1
v.
MEMORANDUM *
CHRISTIAN HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted February 13, 2013
Pasadena, California
Before: BERZON and WATFORD, Circuit Judges, and CARR, Senior District
Judge.**
1. Hernandez challenges the district court’s imposition of the two-level
sentencing enhancement that applies “[i]f the defendant was a parent, relative, or
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
legal guardian of the minor involved in the offense, or if the minor was otherwise
in the custody, care, or supervisory control of the defendant.” U.S.S.G. §
2G2.1(b)(5). The district court did not abuse its discretion in applying this
enhancement. The Sentencing Commission explains that this enhancement “is
intended to have broad application and includes offenses involving a minor
entrusted to the defendant, whether temporarily or permanently.” Id. § 2G2.1 cmt.
n.3(A). At sentencing, the district court heard evidence that Hernandez and the
victim’s aunt lived together, that the victim often visited them, and that the victim
was sometimes left alone with Hernandez while her aunt ran errands.
2. Hernandez raises numerous challenges to the procedural and substantive
reasonableness of his prison sentence, none of which have merit. The district court
adhered to the sentencing procedures that we laid out in United States v. Carty, 520
F.3d 984, 991–92 (9th Cir. 2008) (en banc). The court first correctly calculated the
applicable Guidelines range, gave both parties a chance to argue for the sentence
they thought appropriate, considered the 18 U.S.C. § 3553(a) factors, and
explained its reasons for the selected sentence. Contrary to Hernandez’s
contentions, the district court did not rely on clearly erroneous facts at sentencing;
did not excessively rely on any one § 3553(a) factor; did not abuse its discretion in
denying Hernandez’s request for a voluntary disclosure downward departure under
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U.S.S.G. § 5K2.16; did not fail to consider unwarranted sentencing disparities; and
did not unreasonably apply sentencing enhancements. As “we see nothing unusual
about [Hernandez’s] circumstances to compel a lower sentence than the low-end of
the Guidelines range,” Hernandez’s low-end Guidelines sentence is also not
substantively unreasonable, whether or not it is the sentence we would have
chosen. Carty, 520 F.3d at 996.
3. Hernandez contends that the residency restriction imposed as Condition
No. 15 of his lifetime term of supervised release is unreasonable and overbroad.
Because Hernandez did not object at sentencing to Condition No. 15, we review
the condition for plain error. See United States v. Blinkinsop, 606 F.3d 1110, 1118
(9th Cir. 2010). “A district judge need not state at sentencing the reasons for
imposing each condition of supervised release,” but only if those reasons are
“apparent from the record.” Id. at 1119 (emphasis omitted). Here, the district court
plainly committed procedural error in imposing Condition No. 15, as it did not
state its reasons for imposing that condition, and they are not apparent from the
record.1
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Because we hold that the district court committed procedural error in
imposing Condition No. 15, we do not reach the question of the substantive
reasonableness of such a residency restriction.
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District courts may impose a supervised release condition only if it meets
two criteria: First, the condition must be “reasonably related to the goal of
deterrence, protection of the public, or rehabilitation of the offender”; and second,
it must “involve no greater deprivation of liberty than is reasonably necessary for
the purposes of supervised release.” United States v. Daniels, 541 F.3d 915, 924
(9th Cir. 2008) (internal quotation marks omitted). Here, the problem arises at the
second criterion. It is apparent from the record that Condition No. 15, which seeks
to minimize Hernandez’s access to children, is “reasonably related to the goal of . .
. protection of the public,” but it is not apparent why it “involve[s] no greater
deprivation of liberty than is reasonably necessary” to achieve that goal. Id.
In particular, when imposing a residency restriction such as this one, the
district court must explain, if the explanation is not apparent from the record, “how
the chosen distance furthers the purpose of [the defendant]’s supervised release”
and why the chosen distance, as opposed to any other distance, is sufficient but no
greater than necessary. United States v. Rudd, 662 F.3d 1257, 1263 (9th Cir. 2011);
see also United States v. Collins, 684 F.3d 873, 890–92 (9th Cir. 2012). This
explanation must be “tailored to the nature and circumstances of [the defendant]’s
offense and his specific character and history.” Rudd, 662 F.3d at 1263. In the
absence of such an explanation, the choice of distance “appears arbitrary.” Id.
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Here, the district court did not provide any explanation for the residency
restriction, much less for the particular distance chosen of 2,000 feet, and its
reasons for selecting that distance are not apparent from the record. The Probation
Office recommended the restriction, but did not explain why; it offered only the
generic rationale that “sex offender conditions, including treatment and restriction
of access to minors, are recommended given the instant offense involving sexual
contact with a child.” This rationale addresses only the need for some restriction; it
does not address why the particular restriction imposed is warranted or why it is no
more restrictive than necessary.
We, therefore, vacate Condition No. 15 and remand to the district court for
reconsideration after consideration of any submissions by the parties. If the district
court reimposes the condition (or a modified version thereof), it should provide an
explanation of why the terms of the condition — including the distance chosen, the
specified list of institutions, and whether or not the Probation Officer has discretion
to modify those terms — are both sufficient and “involve no greater deprivation of
liberty than is reasonably necessary” to protect the public in light of Hernandez’s
offense, character, and history. Daniels, 541 F.3d at 924; see Rudd, 662 F.3d at
1263.
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4. Hernandez contends that the district court erred in calculating the amount
of restitution. He did not challenge the amount at sentencing, so we review the
restitution amount for plain error. See United States v. Bright, 353 F.3d 1114, 1120
(9th Cir. 2004). In a letter brief to this court and again at oral argument, the
government conceded that the restitution amount that it proposed to the district
court, and which the district court adopted, was calculated erroneously. We
therefore vacate Hernandez’s restitution order and remand to the district court for
recalculation of the restitution amount. On remand, the district court should impose
restitution in the amount of the victim’s past counseling expenses plus only those
future counseling expenses that it can estimate “with reasonable certainty.” United
States v. Laney, 189 F.3d 954, 966 n.14 (9th Cir. 1999).
AFFIRMED IN PART, VACATED IN PART, and REMANDED.
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