United States v. Tim Collins , 684 F.3d 873 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 10-50344
Plaintiff-Appellee, D.C. No.
v.  8:08-cr-00209-
TIM JAMES COLLINS, JVS-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Argued and Submitted
April 11, 2012—Pasadena, California
Filed June 22, 2012
Before: Andrew J. Kleinfeld and Milan D. Smith, Jr.,
Circuit Judges, and Algenon L. Marbley, District Judge.*
Opinion by Judge Marbley
*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
7459
UNITED STATES v. COLLINS 7463
COUNSEL
Jean-Claude Andre, Assistant United States Attorney
(argued); Curtis Arthur Kin, Assistant United States Attorney,
Mieke Biesheuvel, Assistant United States Attorney, Robert
E. Dugdale, Assistant United States Attorney, for plaintiff-
appellee United States.
Robert Stephen Hanna (argued), for defendant-apellant Tim J.
Collins.
OPINION
MARBLEY, District Judge:
Tim James Collins appeals his conviction and imposition of
a 60-month sentence following his entry of a plea of guilty to
a single charge of possessing child pornography that had been
shipped in interstate commerce, in violation of 18 U.S.C.
§ 2252A(a)(5)(B).
Collins challenges his conviction and sentence on three
bases: (1) the district court’s acceptance of Collins’s guilty
plea violated Federal Rule of Criminal Procedure 11; (2) the
First Superseding Indictment was invalid due to improper
instructions submitted to the grand jury; and (3) the lifetime
term of supervised release imposed by the district court is
unreasonable and unconstitutional. Collins contends that, as a
result of these errors, the district court’s judgment must be
vacated, and he is entitled to negotiate about re-pleading
under the status quo ante immediately after his initial, August
18, 2009, plea. Collins alternatively contends that the lifetime
term of supervised release and certain conditions of release
should be struck from his sentence.
The district court did not err in accepting Mr. Collins’s
guilty plea, and Collins’s challenges to the grand jury instruc-
7464 UNITED STATES v. COLLINS
tions were untimely and therefore waived. Accordingly, we
AFFIRM Collins’s conviction. We hold, however, that the
district court committed procedural error by failing to provide
adequate analysis for the imposition of the residency restric-
tions in Collins’s lifetime term of supervised release. We,
therefore, VACATE the supervised release portion of his sen-
tence, and REMAND the case to the district court to resen-
tence Collins under the First Superseding Indictment. The
district court’s articulated reasons for its imposed sentence
must show that it properly analyzed all the required factors to
be considered under 18 U.S.C. § 3553(a) before imposing
terms and conditions of supervised release which are substan-
tively reasonable, in light of Collins’s offense characteristics
and the goals of sentencing.
I. BACKGROUND
A. Factual History
On December 19, 2007, an FBI Special Agent, working
undercover, used peer-to-peer network software to view lists
of videos and images stored on Collins’s computer. The agent
downloaded and viewed three images that appeared to be
child pornography. On March 6, 2008, agents executed a fed-
eral search warrant at Collins’s residence in Anaheim, Cali-
fornia. During the search, law enforcement officers seized
Collins’s computer equipment, including several compact
discs and a Seagate brand hard drive (“the hard drive”).
A search of the compact discs and the hard drive revealed
images depicting actual minors engaged in sexually explicit
conduct, as well as eleven videos depicting minors engaging
in sexually explicit conduct. Collins was interviewed the day
that his computer media were seized. He admitted to down-
loading child pornography images for approximately six years
and to searching the internet for child pornography. The
images and visual depictions had been shipped or transported
in interstate or foreign commerce by any means, including
UNITED STATES v. COLLINS 7465
computers. Collins obtained the videos by using a computer.
Collins knew that the videos showed a minor engaged in sex-
ually explicit conduct, and were made using a minor engaging
in sexually explicit conduct.
Additionally, a woman, “M.A.,” told FBI agents that in
2005, when she was a fifteen year-old girl, Collins traveled to
the Philippines where she lived and had sexual intercourse
with her multiple times knowing that M.A. was only fifteen.
Collins admitted to having had a sexual relationship with
M.A., but disputes that he knew she was underage at the time.
B. Procedural History
On August 6, 2008, a grand jury (“the original grand jury”)
returned a single-count indictment against Collins, charging
him with a violation of 18 U.S.C. § 2252A(a)(5)(B) for pos-
sessing child pornography on one of the seized computer hard
drives. On October 2, 2008, the district court empaneled a
new grand jury (“the October 2008 Grand Jury”) and
instructed the new jurors. On June 24, 2009, the October 2008
Grand Jury returned a two-count First Superseding Indictment
against Collins, both counts being for violations of 18 U.S.C.
§ 2252A(a)(5)(B) based on the child pornography material
found in his possession on March 6, 2008.
On July 15, 2009, Collins and the government entered into
a plea agreement in which Collins agreed “to plead guilty to
count one of the superseding indictment.” In exchange for
Collins’s guilty plea, the government agreed, inter alia, to
move to dismiss the remaining count of the First Superseding
Indictment and not to prosecute Collins for his 2005 sexual
conduct with “M.A.,” or for his possession of additional child
pornography, neither of which had been charged in the First
Superseding Indictment.
On August 18, 2009, the district court held a change of plea
hearing. After placing Collins under oath, the court thor-
7466 UNITED STATES v. COLLINS
oughly questioned him and advised him of his constitutional
rights, which he waived. Taking the elements directly from
Collins’s plea agreement, the government recited the elements
required to establish a violation of 18 U.S.C.
§ 2252A(a)(5)(B) for possession of child pornography, as
charged in Count One of both the original and the First Super-
seding Indictments, and as set forth in the plea agreement.
Collins admitted to the facts and elements of his offense as set
forth in the plea agreement. Collins then re-affirmed his desire
to plead guilty.
The district court accepted Collins’s guilty plea. In doing
so, however, the court misspoke and, instead of asking Collins
how he desired to plead to count one of the superseding
indictment, the court asked Collins how he desired to plead to
count one of “the indictment.” No objections were raised to
the validity of the guilty plea, and the hearing was adjourned.
Realizing its misstatement, the district court contacted the
parties and scheduled a second hearing for August 31, 2009.
At the August 31, 2009 hearing, the court announced its pre-
vious error, and proposed placing Collins under oath again to
clarify that Collins intended to plead to Count One of the First
Superseding Indictment. Collins’s lawyer stated: “We don’t
object to that proceeding.” The government also had no objec-
tions. The court then placed Collins under oath and reminded
him about the prior “extensive discussion” at the change of
plea hearing where Collins pled guilty. The court asked Col-
lins if there was anything from their prior discussion that Col-
lins wanted to change. Collins answered, “No, Your Honor.”
The court then stated to Collins that: “at the end [of the
prior hearing], the concluding question was ‘how do you
plead to Count One of the Indictment.’ I made an error. I
should have said the ‘First Superseding Indictment.’ ” The
court asked Collins if he had discussed this issue with his law-
yer. Collins responded that indeed he had. The court then
asked the question again, “Sir, how do you plead to Count
UNITED STATES v. COLLINS 7467
One of the First Superseding Indictment?” Collins responded,
“Guilty.” The court accepted Collins’s plea and made several
findings before ending the hearing, including a finding that
Collins “entered his plea freely and voluntarily with a full
understanding of the charges against him and the conse-
quences of his plea.”
On July 12, 2010, the district court sentenced Collins to a
total of 60 months’ imprisonment.1 The district court also
imposed, over the objections of Collins, a lifetime term of
supervised release, and a special assessment of $100. 18
U.S.C. § 3583(k); USSG § 5D1.2(b)(1).
In the court’s sentencing memorandum explaining its deci-
sion to impose a lifetime period of supervised release, the
court cited the “policy of the Guidelines to impose a maxi-
mum term of supervised release,” but also indicated it under-
stood the need to “make a particularized determination and
. . . not rely on generalities.” The court explained that the seri-
ousness of Collins’s offense, downloading and sharing a “sub-
stantial volume” of “hard core child pornography,” warranted
the need for a life term of supervision. The court added, how-
ever, that “[i]f [Collins] demonstrates rehabilitation after a
number of years, he is free to seek termination of supervised
release.”
As part of the life term of supervised release, and again
over the objections of Collins, the district court imposed sev-
eral special conditions of supervised release. These conditions
include prohibiting Collins from frequenting or loitering
“within 100 feet of school yards, parks, public swimming
pools, playgrounds, youth centers, video arcade facilities, or
1
Collins was assigned a Criminal History Category of I. The district
court then adopted a variance from the recommended Sentencing Guide-
lines range by subtracting two levels on the basis of Collins’s potential
childhood abuse, and his military service. Collins’ 60-month sentence was
three months above the lower level of a Level 25 offense.
7468 UNITED STATES v. COLLINS
any other places primarily used by persons under the age of
18” (“Condition 11”), as well as a residency restriction,
referred to as “Condition 15,” which provides:
The defendant shall not reside within 2,000 feet of
school yards, parks, public swimming pools, play-
grounds, youth centers, video arcade facilities, or
any other places primarily used by persons under the
age of 18. The defendant’s residence shall be
approved by the probation officer, and any change in
residence must be pre-approved by the probation
officer. The defendant shall submit the address of the
proposed residence to the probation officer at least
ten days prior to any scheduled move.
In response to Collins’s objections to Condition 15, the
court simply responded that, “[t]he short answer is that as a
general matter, Collins must follow the law as a condition of
supervised release, and this restriction is mandated by Califor-
nia law,” referring to California Penal Code section 3003.5,
which imposes a similar 2,000-foot residency restriction on
all registered sex offenders. The court also added that, “[e]ven
if this were not the case, the restriction is a proper measure
to ensure protection of the public given the nature of the
crime, and the Ninth Circuit has approved even more stringent
restrictions.” Collins timely appealed.
II. JURISDICTION
We have jurisdiction over this appeal from a conviction and
final decision of the district court under 28 U.S.C. § 1291.
III. DISCUSSION
A. Acceptance of Collins’s Plea of Guilty
1. Standard of Review
Federal Rule of Criminal Procedure 11 governs negotiation,
entry and acceptance of pleas. We review an appellant’s sub-
UNITED STATES v. COLLINS 7469
mission of Rule 11 violations for plain error where the defen-
dant failed to raise them in the district court. United States v.
Dominguez Benitez, 542 U.S. 74, 83 (2004); United States v.
Bowory, 595 F.3d 1045, 1049 (9th Cir. 2010). Under a plain
error standard of review, an error in the district court requires
reversal “only if it affected the defendant’s substantial rights.”
United States v. Monzon, 429 F.3d 1268, 1271 (9th Cir. 2005)
(holding that, to evaluate the effect of a Rule 11 error, “we
must look to the entire record and not to the plea proceedings
alone”).
For an error to affect substantial rights, “in most cases it
means that the error must have been prejudicial: It must have
affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 734 (1993). Certain
“structural” Rule 11 errors, however, have been deemed so
fundamental as to “undermin[e] the fairness of a criminal pro-
ceeding as a whole,” and require reversal “without regard to
the mistake’s effect on the proceeding.” Dominguez Benitez,
542 U.S. at 81. Hence, if the plain error was a structural one,
the existence of prejudice is generally presumed. See United
States v. Sandoval-Mendoza, 472 F.3d 645, 652 (9th Cir.
2006). The Supreme Court has “found structural errors only
in a very limited class of cases.” Johnson v. United States,
520 U.S. 461, 469 (1997) (listing examples of structural
errors). To meet his burden for reversal, the defendant “must
prove that there is a ‘reasonable probability that, but for the
error, he would not have entered the plea.’ ” Borowy, 595
F.3d at 1049 (quoting Monzon, 429 F.3d at 1272).
2. Analysis
Collins alleges three separate errors affecting his plea of
guilty. First, he alleges that the district court was incorrect in
assuming that the August 18, 2009 plea to a charge in the
original indictment was invalid and required correction. Sec-
ond, Collins claims the district court’s proposing its own reso-
lution of its mistake during the first plea colloquy was a
7470 UNITED STATES v. COLLINS
violation of Rule 11’s prohibition against the court participat-
ing in plea discussions, and constituted structural error. Third,
Collins claims the district court again violated Rule 11 by
accepting Collins’s August 31, 2009 guilty plea to Count One
of the Superseding Indictment without advising Collins of the
nature of the charge to which he was pleading.
We hold that the district court’s conducting a subsequent
hearing to correct the record of its misstatement during the
initial plea colloquy was neither plain error, nor structural
error.
a. Validity of Collins’s Original Plea
Collins alleges that the district court erred by improperly
attempting to correct Collins’s initial plea of guilty from the
August 18, 2009 change of plea hearing. Collins contends that
although he inadvertently pled to the wrong charge at that
hearing—because of the court’s reference to “the indictment”
instead of the superseding indictment—he insists that the ini-
tial plea was nevertheless a validly accepted plea. Collins
claims that the plea he entered on August 18, 2009, contra-
vened the language of the plea agreement, and, as such, con-
stituted plain error.
To establish plain error the defendant must show: “ ‘(1)
error, (2) that is plain, (3) that affected substantial rights, and
(4) that seriously affected the fairness, integrity or public rep-
utation of the judicial proceedings.’ ” Borowy, 595 F.3d at
1049 (quoting United States v. Benz, 472 F.3d 657, 659 (9th
Cir. 2006)).
[1] The rationale behind Collins’s first assignment of error
is rather tenuous. There is no dispute that the district court
incorrectly stated “the indictment,” as opposed to “the super-
seding indictment,” during the August 18, 2009 plea colloquy.
Likewise, no party disputes that Collins intended to plead to
Count One of the First Superseding Indictment, as provided
UNITED STATES v. COLLINS 7471
in the plea agreement. Upon realizing its mistake, the district
court called the parties back into court. The court repeatedly
asked Collins if he had any objections to the proposed hearing
to correct the record, to which Collins repeatedly replied that
he did not. The district court, accordingly, made no wrong
assumptions in seeking to correct its mistaken colloquy, let
alone any reversible errors.
[2] The first two elements of the test for reversible plain
error are met, as the district court admitted its error on the
record, and the error was plain enough. As Collins asserts, the
August 18, 2009 plea contravened the intent of parties
reflected in their plea agreement. Collins is unable to meet the
third element for plain error, however. The subsequent August
31, 2009 hearing corrected the “error,” and Collins has shown
no adverse effect to his substantial rights, nor any effect on
the fairness, integrity or public reputation of the judicial pro-
ceedings. Borowy, 595 F.3d at 1049. Even if the original plea
was technically valid, and in contravention of the plea agree-
ment, the court did not proceed under that plea in sentencing
Collins. Moreover, the charges were identical in nature, which
further negates any possibility of prejudice or harm to Col-
lins’s substantial rights. Collins fails to meet elements three
and four of the plain error test.
b. The District Court’s Participation in Plea
Negotiations
Second, Collins claims the district court violated Rule 11’s
prohibition against the court participating in plea negotiations
by proposing a solution to its mistake of referencing “the
indictment” at the August 18, 2009 hearing. We review this
claim de novo. United States v. Torres, 999 F.2d 376, 378
(9th Cir. 1993). Before we do, however, it bears repeating that
neither Collins nor the government lodged any objections to
the court’s proposal of holding an additional hearing to cor-
rect the mistake and ensure the record was clear that Collins
7472 UNITED STATES v. COLLINS
was pleading to the intended charge in the First Superseding
Indictment.
[3] Rule 11(c)(1) provides that “the court must not partici-
pate in [plea] negotiations.” Fed. R. Crim. P. 11(c). And,
indeed, we have interpreted the Rule’s prohibition strictly. See
United States v. Gonzalez-Melchor, 648 F.3d 959, 963 (9th
Cir. 2011) (holding that Rule 11(c)(1) establishes “such a
bright-line rule that a finding of judicial misconduct in con-
nection with a plea proceeding constitutes plain error and
entitles a defendant to withdraw his guilty plea even if the
error is identified for the first time on appeal”) (internal cita-
tions and quotations omitted). The Rule’s strict precaution
against judicial involvement in plea negotiations is a safe-
guard against the “risk of coercion,” see id., which is present
even in cases of seemingly benign involvement by the court.
Collins, however, seeks a finding of judicial misconduct
based on the district court’s efforts to correct a mere misstate-
ment in the original plea colloquy. He insists that the district
court, after identifying that the plea was made to the wrong
indictment, should have “left the resolution to the parties.”
[4] The district court’s second hearing, to assure that the
record reflected Collins’s plea to the superceding indictment
as his plea agreement had already provided, cannot reason-
ably be characterized as “participation” in plea negotiations.
There is no evidence or arguments suggesting that the court’s
proposed hearing to enter a new plea had any influence on the
already finalized plea agreement between Collins and the gov-
ernment, which remained intact and unchanged. See United
States v. Frank, 36 F.3d 898, 902 (9th Cir. 1994) (permitting
certain court involvement in the plea process where it “took
place after, not before, the parties had concluded their agree-
ment, and the prosecutor had laid it out in open court”).2 Had
2
In Frank, where, as here, “the judge . . . was not trying to shape the
agreement or persuade either side to accept it,” Rule 11 is not violated. 36
UNITED STATES v. COLLINS 7473
the court failed to correct its mistake, its erroneous colloquy
would have remained intact, potentially in contravention of
the plea agreement.
[5] We hold that the court’s proposal to correct a misstate-
ment in the plea colloquy to which all parties agreed, pre-
cisely so that the intent of the plea agreement would be
effectuated, does not violate Rule 11’s prohibition of judicial
interference.
c. The Court’s Failure to Inform Collins of the
Nature of the Charge
In Collins’s third alleged Rule 11 error, he claims the dis-
trict court failed to advise him properly of the nature of the
charge to which he was pleading at the final, August 31, 2009
hearing. Specifically, Collins complains that the court vio-
lated Rule 11 in failing to explain the relationship between the
charge to which he had erroneously pled on August 18, 2009,
and the charge to which he was pleading at the August 31,
2009 hearing. Collins claims this was reversible error despite
admitting that the court explained, at length, the nature and
elements of the charged offense at the August 18, 2009 hear-
ing, and that the charge to which he pled in the original indict-
ment and the charge to which he later pled in the superseding
indictment are identical.
[6] Rule 11 requires the district court, before it accepts a
defendant’s plea of guilty or nolo contendere, to “inform the
F.3d at 902; Compare United States v. Torres, 999 F.2d 376, 378 (9th Cir.
1993) (district court did not violate Rule 11 where parties had already
“hammered out” the agreement before presenting to sentencing judge, who
then engaged in colloquy to determine the nature of the plea deal); with
United States v. Garfield, 987 F.2d 1424, 1426-27 (9th Cir. 1993) (district
court erred by advising defendant on the merits of pleading guilty); United
States v. Anderson, 993 F.2d 1435, 1436-38 (9th Cir. 1993) (judge vio-
lated Rule 11 by stating before plea agreement had been reached that he
would not accept anything less than a guilty plea to all counts charged).
7474 UNITED STATES v. COLLINS
defendant of, and determine that the defendant understands,”
inter alia, “the nature of each charge to which the defendant
is pleading.” Fed. R. Crim. P. 11(b)(1)(G). Though he did not
object at any point during the August 18, or August 31, 2009
hearings, Collins now contends that the colloquy between the
district court and Collins at the August 31, 2009 hearing
failed to satisfy Rule 11’s requirement.
The adequacy of the district court’s Rule 11 plea colloquy
is subject to our de novo review. United States v. Minore, 292
F.3d 1109, 1115 (9th Cir. 2002). Collins relies on McCarthy
v. United States, 394 U.S. 459 (1969) in demanding that he
be permitted to enter a new plea. In McCarthy, the Supreme
Court held that “a defendant is entitled to plead anew if a
United States district court accepts his guilty plea without
fully adhering to the procedure provided for in Rule 11.” Id.
at 463-64. Rule 11, however, has since been amended, and
now specifically provides that not every violation of its terms
entitles the defendant to withdraw his guilty plea. Rule 11(h)
states that “[a] variance from the requirements of this rule is
harmless error if it does not affect substantial rights.” Fed. R.
Crim. P. 11(h).
[7] It is true that the district court did not re-conduct the
full Rule 11 colloquy at the August 31, 2009 hearing, which
may have run afoul of Rule 11’s requirements had that hear-
ing been a stand-alone change of plea proceeding. See, e.g.,
United States v. Pena, 314 F.3d 1152, 1156 (9th Cir. 2003) (in
which a more thorough plea colloquy nevertheless “failed to
comply with Rule 11 because the district court never
explained to [the defendant] the nature of the charges against
him”). The court and the parties, however, expressly under-
stood the August 31, 2009 hearing to be a continuation of the
prior change of plea hearing, in which it is undisputed the
court conducted a full plea colloquy.
At the August 18, 2009, hearing the district court went into
detail regarding the elements of the violation of 18 U.S.C.
UNITED STATES v. COLLINS 7475
§ 2252(A)(a)(5)(B) for possession of child pornography, and
Collins confirmed that he understood the nature of the charge
and facts alleged against him. Then, at the August 31, 2009
hearing, the court suggested, and both parties agreed, that
repeating the prior colloquy was unnecessary since “the
pleading instrument to which [Collins] has pled is the First
Superceding [sic] Indictment.” It was only the court’s omis-
sion of the word “superseding” which transformed the plea to
that of the original indictment at the end of the initial change
of plea hearing.
[8] The charge to which Collins pled from the original
indictment and the charge in the superseding indictment were
identical. Any technical noncompliance with Rule 11 at the
August 31, 2009 hearing, therefore, was harmless, as the out-
come of the proceedings would undoubtedly have remained
the same even if the court had decided not to hold the August
31, 2009 hearing. See United States v. Raineri, 42 F.3d 36, 41
(9th Cir. 1994) (“Harmless error analysis usually poses the
question whether the error influenced the decision-maker or
whether the ultimate outcome would have been the same if
the error had not been committed[.]”). There is no evidence
in the record to suggest that Collins would have done any-
thing other than affirm his guilty plea—as he had done at the
prior change of plea hearing—if the court had repeated the
full colloquy over again.
[9] Because it is abundantly clear from the record of the
August 18, 2009 and August 31, 2009 hearings that the court
adequately informed Collins of, and Collins confirmed he
fully understood, the nature of the charge to which he
intended to plea, and to which he ultimately did plea, any for-
mal deficiencies of the August 31, 2009 discussion were
harmless and do not warrant reversal. Under Rule 11(h) no
reversible error was committed by the abbreviated colloquy in
this case.
Collins has failed to identify any structural errors commit-
ted by the district court in accepting Collins’s plea of guilty
7476 UNITED STATES v. COLLINS
to count one of the superseding indictment, and has failed to
make a showing of prejudice which would render any of the
alleged deficiencies with the court’s procedure in accepting
the plea reversible plain errors.
B. Instructions Given to the October 2008 Grand Jury
1. Standard of Review
Collins claims, for the first time on appeal, that the district
court’s instructions to the October 2008 Grand Jury were
defective, and as a result the superseding indictment was not
returned by a duly constituted grand jury. Objections to the
indictment raise questions of law which are reviewed de novo.
United States v. Kahlon, 38 F.3d 467, 469 (9th Cir. 1994).
Under Fed. R. Crim. P. 12(b)(3), failure to present objections
based on defects in instituting the prosecution, including
defects in the grand jury proceedings, prior to the start of trial,
constitutes a waiver thereof. Shotwell Mfg. Co. v. United
States, 371 U.S. 341, 362 (1962); Kahlon, 38 F.3d at 469.
Even where an error in the grand jury instructions is
brought to the district court’s attention prior to conviction,
“dismissal of the indictment ‘is appropriate only if it is estab-
lished that the violation substantially influenced the grand
jury’s decision to indict or if there is grave doubt that the
decision to indict was free from the substantial influence of
such violations.’ ” United States v. Caruto, 663 F.3d 394, 399
(9th Cir. 2011) (quoting United States v. Navarro, 608 F.3d
529, 539 (9th Cir. 2010)).
2. Analysis
Collins alleges that the instructions made to the October
2008 Grand Jury were improper for: (1) using mandatory lan-
guage forbidding the grand jury from considering punishment,
and (2) providing further misleading instructions which
undermined the grand jury’s discretionary function. Collins
UNITED STATES v. COLLINS 7477
alleges that the improper instructions constituted structural
error, and, as a result, Collins cannot be required to plead to
the superseding indictment returned by the October 2008
Grand Jury.
It is well-established that “[t]he Fifth Amendment may be
violated if the independence of the grand jury in performing
its historical function is substantially infringed.” United States
v. Caruto, 627 F.3d 759, 763 (9th Cir. 2010). In furtherance
of our duty to safeguard the grand jury’s independence, this
Court has condemned instructions to grand juries with imper-
missible “mandatory” language. See id.
Collins complains that the district court’s instruction to the
jury that “when deciding whether or not to indict, you cannot
consider punishment in the event of conviction,” was
improper because it forbade the jury from considering punish-
ment. The given instruction deviated from the relevant Model
Grand Jury Charge, which uses less mandatory phrasing and
states that, “you should not consider punishment in the event
of conviction.” Model Grand Jury Charge (MGJC) § 10
(emphasis added). The district court also gave instructions
from Model Grand Jury Charges 9,3 and 25,4 which Collins
also claims unconstitutionally limited the grand jury’s autono-
mous discretion.
Collins acknowledges that both of these latter instructions
3
“You are not able to judge the wisdom of the criminal laws enacted by
Congress; that is, whether there should or should not be a federal law des-
ignating criminal activity—designating activity as criminal. That’s deter-
mined by Congress and not for the grand jury.” MGJC § 9.
4
“Your task is to determine whether the government’s evidence, as pre-
sented to you, is sufficient to cause you to conclude that there is probable
cause to believe that the person being investigated committed the offense
charged” MGJC § 25. The district court continued, “[t]o put it another
way, you should vote to indict where the evidence presented to you is suf-
ficiently strong to warrant a reasonable person’s belief that the person
being investigated is probably guilty of the offense charged.” Id.
7478 UNITED STATES v. COLLINS
have been previously upheld as constitutional. See United
States v. Navarro-Vargas, 408 F.3d 1184, 1202-05 (9th Cir.
2004) (en banc); Caruto, 663 F.3d at 401. Nevertheless, he
challenges them for reflecting the misguided “present legal
culture” that discourages grand juries from exercising robust
discretion, in contrast to what the framers of the Fifth Amend-
ment intended.
What Collins fails to address, however, is that he did not
timely raise these alleged “structural” errors in the instruc-
tions given to the October 2008 Grand Jury in district court
proceedings. Collins provides no defense—presumably
because none exists—as to why he has not waived his chal-
lenge to the lawfulness of the grand jury’s indictment. The
Court, therefore, need not take up the substance of Collins’s
arguments, much less re-visit the development of the modern
grand jury, as the Court did at length in Navarro-Vargas,
because Collins failed to preserve these challenges in the
court below.
[10] Fed. R. Crim. P. 12(b)(3)(A)’s language requires any
motions challenging the “institution of the prosecution,”
broadly, to be raised before trial. This Court has consistently
held that any challenges to the grand jury proceedings are
encompassed within the Rule. See Kahlon, 38 F.3d at 469
(“ ‘[I]rregularities in grand jury proceedings’ are considered
to be defects in the institution of the prosecution within the
meaning of Rule 12(b).”). Prior versions of Rule 12(b)’s lan-
guage even more unambiguously precluded Collins’s late
challenge to the grand jury’s instructions.
The pre-2002 version of Rule 12 expressly included any
and all defenses or objections based on defects in the indict-
ment in the class of challenges waived if not brought prior to
trial. The previous Rule’s subsections (b)(2) and (f) stated, in
pertinent part:
(b) any defense, objection, or request which is capa-
ble of determination without the trial of the general
UNITED STATES v. COLLINS 7479
issue may be raised before trial by motion. . . . The
following must be raised prior to trial:
(1) Defenses and objections based on
defects in the institution of the prosecution;
or
(2) Defenses and objections based on
defects in the indictment . . .
(f) Failure by a party to raise defenses or objections
or to make requests which must be made prior to
trial, . . . , shall constitute waiver thereof, but the
court for cause shown may grant relief from the
waiver.
Fed. R. Crim. P. 12 (1991 Rev. Ed.), as excerpted in United
States v. Andrello, 816 F. Supp. 806, 809 (N.D.N.Y. 1993).
When the Advisory Committee adopted the current version
of Rule 12(b), it specifically stated that the changes were “in-
tended to be stylistic only,” except to “more clearly indicate
that Rule 47 governs any pretrial motions filed under Rule 12,
including form and content.”5 Fed. R. Crim. P. 12, Advisory
Committee Notes on 2002 Amendments (adding, further, that
“[n]o change in practice is intended”).
[11] Having failed to raise the alleged defects in the
instructions to the October 2008 Grand Jury prior to his con-
viction, and having shown no good cause for granting relief
from Rule 12’s mandated waiver, Collins has relinquished his
opportunity to raise the instructional challenges on appeal.
5
Fed. R. Crim. P. 47 contains guidelines for the form, requirements, and
timing of pleading and pretrial motions submitted to the court.
7480 UNITED STATES v. COLLINS
C. The Court’s Imposition of a Life Term of
Supervised Release
1. Standard of Review
The Court’s review of Collins’s sentence involves a two-
step determination for whether the district court abused its
discretion. First, we review the sentence for any significant
procedural errors. United States v. Carty, 520 F.3d 984,
992-93 (9th Cir. 2008) (en banc). As a matter of procedural
due process, “a sentencing judge must explain a sentence suf-
ficiently to communicate ‘that a reasoned decision has been
made’ and ‘permit meaningful appellate review.’ ” United
States v. Rudd, 662 F.3d 1257, 1260 (9th Cir. 2011); 18
U.S.C. § 3553(a). The sufficiency of a court’s explanation of
its sentence is case specific. See Carty, 520 F.3d at 992.
In the second step, we review the sentence for its substan-
tive reasonableness, accounting for the “totality of the circum-
stances” presented to the district court. United States v.
Blinkinsop, 606 F.3d 1110, 1116 (9th Cir. 2010). This Court,
tracking the language of 18 U.S.C. § 3553(a), has held that
“[a] substantively reasonable sentence is one that is ‘suffi-
cient, but not greater than necessary’ to accomplish
§ 3553(a)(2)’s sentencing goals.” Rudd, 662 F.3d at 1260.
The length of a term of supervised release is reviewed for
its reasonableness using the same, deferential, abuse-of-
discretion standard used for challenges to any other part of the
defendant’s sentence. United States v. Apodaca, 641 F.3d
1077, 1079 (9th Cir. 2011), cert. denied, No. 11-5314, 2011
U.S. LEXIS 5666 (Oct. 3, 2011). Additionally, we review the
district court’s decision to impose a particular condition of a
term of supervised release for an abuse of discretion. Rudd,
662 F.3d at 1259; United States v. Stoterau, 524 F.3d 988,
1002 (9th Cir. 2008).
UNITED STATES v. COLLINS 7481
2. Analysis
Collins challenges the district court’s procedural and sub-
stantive reasonableness in imposing the lifetime term of
supervised release with Condition 15, which prohibits him
from residing within 2,000 feet of parks, schools, and other
child areas, particularly in conjunction with Condition 11,
which prohibits frequenting or loitering “within 100 feet of
school yards, parks, public swimming pools, playgrounds,
youth centers, video arcade facilities, or any other places pri-
marily used by persons under the age of 18.” Collins also
argues that Condition 15 violates his fundamental constitu-
tional rights of travel, association, and enjoyment of property,
as well as his Eighth Amendment right to be free from exces-
sive punishment.
a. Procedural Reasonableness of the Lifetime Term of
Supervised Release
When reviewing a term of supervised release for procedural
error, “we consider the same factors” that pertain to reviewing
terms of imprisonment. Apodaca, 641 F.3d at 1081. To be a
procedurally proper sentence, the district court must do the
following:
(1) correctly calculate the Sentencing Guidelines
range; (2) treat the Guidelines as advisory; (3) con-
sider the 18 U.S.C. § 3553(a) factors; (4) choose a
sentence that is not based on clearly erroneous facts;
(5) adequately explain the sentence; and (6) not pre-
sume that the Guidelines range is reasonable.
Blinkinsop, 606 F.3d at 1114 (citing Gall v. United States, 552
U.S. 38, 51 (2007)).
Collins’s claims of procedural error relate to the burden of
proof that the district court adopted in its determination that
a lifetime term of supervised release with Conditions 11 and
7482 UNITED STATES v. COLLINS
15 was appropriate in this case. The appropriate burden of
proof for a court’s determination during sentencing is a ques-
tion of law which we review de novo. See United States v.
Treadwell, 593 F.3d 990, 1000 (9th Cir. 2010) (stating that
“[o]rdinarily, a district court uses a preponderance of the evi-
dence standard of proof when finding facts at sentencing”).
[12] Collins claims that the district court improperly pre-
sumed the reasonableness of the Sentencing Guidelines’ rec-
ommendation of a lifetime period of supervised release, by
treating the lifetime length of supervised release as the “base
line” at the sentencing hearing. For Collins’s offense of pos-
session of child pornography, the Sentencing Guidelines
authorize a term of supervised release for no less than five
years, and the statutory maximum of a life term is recom-
mended. See 18 U.S.C. § 3583(k); USSG § 5D1.2(b). Never-
theless, it would constitute procedural error for the court to
“attach[ ] a presumption of reasonableness to the Guidelines
range or weight[ ] the Guidelines range more heavily than
other § 3553(a) factors.” Carty, 520 F.3d at 994.
[13] Despite Collins’s claims to the contrary, the court’s
stated reasoning behind imposing the lifetime term as part of
Collins’s sentence shows that the court duly considered
whether the recommended lifetime duration of supervised
release was reasonable. The court made a point to clarify that
it “must make a particularized determination and must not
rely on generalities” in light of “the policy of the Guidelines
to impose a maximum term of supervised release.” The court
then discussed the particular nature and characteristics of Col-
lins’s offense which led it to find a lifetime term warranted,
as Section 3553(a) requires. Finally, the court’s attention to
the particulars of Collins’s case is reflected in its Order allow-
ing Collins to “seek termination of supervised release” after
a number of years. Id.
[14] It is entirely appropriate to do as the court did here
and treat the Guidelines recommendation as “the starting
UNITED STATES v. COLLINS 7483
point and the initial benchmark” for arriving at its sentence,
so long as the court does not simply adopt the recommenda-
tion without considering the Section 3553(a) factors. Carty,
520 F.3d at 991. As the trial judge opined, “[t]he court is
mindful that the Guidelines are only a starting point in craft-
ing a reasonable sentence.” Collins’s claim that the court
inappropriately presumed the reasonableness of the Guide-
lines in arriving at the term of supervised release lacks evi-
dentiary support and is unpersuasive.
b. Procedural Reasonableness of the
Special Conditions of Release
Collins also attacks the reasonableness of the special condi-
tions of his life term of supervised release, in particular Con-
dition 15. Collins claims the residency restrictions of
Condition 15 constitute an “extremely disproportionate effect
on the sentence,” and the district court should have required
the government to satisfy a heightened “clear and convincing”
standard before imposing Condition 15. See, e.g., Restrepo,
946 F.2d at 660; United States v. Berger, 587 F.3d 1038, 1047
(9th Cir. 2009). Collins also insists that the district court’s
justification for imposing the onerous restrictions of Condi-
tion 15 was insufficient, and that the court misapplied prior
precedent.
Pursuant to 18 U.S.C. § 3583(d),6 a district court has discre-
6
Section 3583(d) states, in pertinent part, that in addition to the manda-
tory conditions of release,
The court may order, as a further condition of supervised
release, to the extent that such condition—
(1) is reasonably related to the factors set forth in section
[3553(a)] . . . and;
(2) involves no greater deprivation of liberty than is reasonably
necessary for the purposes set forth in section [3553(a)] . . . and;
(3) is consistent with any pertinent policy statements issued by
the Sentencing Commission pursuant to 28 U.S.C. 994(a);
7484 UNITED STATES v. COLLINS
tion to impose special conditions of supervised release, so
long as the conditions are:
reasonably related to the goals of deterrence, protec-
tion of the public, or rehabilitation of the offender;
involve no greater deprivation of liberty than neces-
sary to achieve those goals; and are consistent with
any pertinent policy statements issued by the Sen-
tencing Commission.
United States v. Riley, 576 F.3d 1046, 1048 (9th Cir. 2009).
In weighing these factors for a particular defendant, this
Court has held that “the government ‘shoulders the burden of
proving that a particular condition of supervised release
involves no greater deprivation of liberty than is reasonably
necessary to serve the goals of supervised release.’ ” Id.
(quoting United States v. Weber, 451 F.3d 552, 559 (9th Cir.
2006)); see also Rudd, 662 F.3d at 1260 (“The burden of
establishing the necessity of any condition falls on the gov-
ernment.”).
We reject Collins’s proposed application of the heightened
“clear and convincing” burden to the government’s request
for the lifetime term of release with Condition 15. The clear
and convincing standard has been reserved for “exceptional”
enhancements of the defendant’s offense level calculation.
See United States v. Felix, 561 F.3d 1036, 1047 (9th Cir.
2009). Condition 15 is a special condition of release, not an
enhancement to Collins’s sentence. The clear and convincing
standard, historically, has only been applied to sentencing
courts’ findings in support of offense level enhancements,
never for terms of supervised release.
[and] any condition set forth as a discretionary condition of pro-
bation in section 3563(b) [18 USCS § 3563(b)] and any other
condition it considers to be appropriate.
UNITED STATES v. COLLINS 7485
Although we decline to impose retroactively a heightened
standard of proof on the government to support its requested
conditions of release, we must still review the district court’s
reasoning for each part of the sentence, including the imposed
conditions of supervised release, for whether the district court
adequately considered the 18 U.S.C. § 3553(a) factors.
[15] It is well-established law that “it would be procedural
error . . . to fail adequately to explain the sentence selected.”
Rudd, 662 F.3d at 1260 (quoting Carty, 520 F.3d at 993).
While “we have held that the district court ‘need not state at
sentencing the reasons for imposing each condition of super-
vised release,” id., that is only true “if [the reasoning] is
apparent from the record.” Id. (citations omitted) (concluding
that “[t]he touchstone of ‘reasonableness’ is whether the
record as a whole reflects rational and meaningful consider-
ation of the factors enumerated in 18 U.S.C. § 3553(a)”). It is
not clear that the district court provided adequate support for
imposing the highly restrictive supervised release conditions
in this case.
[16] There can be no doubt that Collins’s conditions of
supervised release impose significant—even extreme—
restrictions on his liberty. The residency restriction effectively
prevents Collins from living in any urban area.7 See Rudd, 662
F.3d at 1264 (stating that, additionally, “[s]everal courts have
also found that similar residency restrictions subject defen-
dants to a state of ‘constant eviction,’ because the prohibited
locations could potentially move or open in new places”).
Such a serious restriction requires sufficient explanation, par-
7
The California Coalition on Sexual Offending’s website provides
maps, produced by the Senate Office of Demographics, showing the
exclusion zones pertaining to Cal. Penal Code § 3003.5(b), which prohib-
its a registered sex offender from residing “within 2000 feet of any public
or private school,” or a subset of parks “where children regularly gather.”
One exclusion zone map for Central California, for example, shows that
only a few isolated areas remain in the Greater Los Angeles area for
defendants to live when subject to the restriction.
7486 UNITED STATES v. COLLINS
ticularly where, as here, the reasonableness of the restriction
is not at all clear from the record. The district court, however,
justified the residency restriction here by simply stating that
the California Penal Code imposes a similar restriction on all
sex offenders, and without providing any specific facts about
Collins’s case that warranted the restriction.
While the Guidelines recommend a lifetime term of super-
vised release for Collins’s class of sex offenders, USSG
§ 5D1.2(b), the particular residency restriction in Condition
15 is not recommended, nor is it listed as one of the standard
optional conditions of supervised release. See USSG
§ 5D1.3(e). Moreover, the Ninth Circuit has recently held
that, a “growing body of empirical research casts serious
doubts on the assumption that persons viewing child pornog-
raphy on the Internet are equally dangerous and likely to com-
mit serious offenses involving sexual contact as are other
offenders.” Apodaca, 641 F.3d at 1083.
Here, rather than weighing the requisite 18 U.S.C.
§ 3553(a) factors to determine the appropriateness of the resi-
dency restriction, the district court rationalized Condition 15
simply by stating that, “[t]he short answer is that as a general
matter, Collins must follow the law as a condition of super-
vised release, and this restriction is mandated by California
law.” While the court also added that Condition 15 “is a
proper measure to ensure protection of the public given the
nature of the crime, and the Ninth Circuit has approved even
more stringent restrictions,” it did not at all explain why Col-
lins’s crime, of possessing child pornography, warrants forc-
ing him to live in rural areas, at least 2,000 feet from schools,
parks, public swimming pools, playgrounds, youth centers,
video arcade facilities, or any other places deemed by his pro-
bation officer to be “primarily used by persons under the age
of 18.” Id.
[17] Collins’s lifetime term with Condition 15 places his
supervised release in league with the most restrictive terms,
UNITED STATES v. COLLINS 7487
imposed on the most serious child molesters. Collins’s crime
was an internet-only offense, and he has no prior sex crime
convictions. While he admitted to having had a relationship
with the 15-year-old minor, “M.A.,” which arguably may
have provided some support for the restriction, the district
court should have explained why the lifetime term with the
severe residency restrictions “involve[d] no greater depriva-
tion of liberty than is reasonably necessary for the purposes
of supervised release.” Daniels, 541 F.3d at 924; as quoted in
Rudd, 662 F.3d at 1263 (in which the Court held that, “[i]n
the absence of any explanation of how the chosen distance
furthers the purposes of Rudd’s supervised release, the choice
of 2,000 feet appears arbitrary”).
The district court, however, appears not to have considered
the appropriate sentencing factors when it imposed Condition
15. By only vaguely referencing just one of the factors (pro-
tection of minors), the court’s Order “neither communicates
‘that a reasoned decision has been made,’ nor is sufficient to
‘permit meaningful appellate review.’ ” Rudd, 662 F.3d at
1263 (quoting Carty, 520 F.3d at 992).
The district court’s reliance on the 2,000-foot residency
restriction for all registered sex offenders under Cal. Penal
Code 3003.5(b) for justifying its imposition of Condition 15,
is misplaced. We agree with the district court, that, having
been convicted of a sex offense punishable as an offense
described in Cal. Penal Code § 290(c),8 Collins is required to
register as a sex offender in California.9 Once registered as
8
Section 290.005(a) provides that any person “convicted in any other
court, including any state, federal, or military court, of any offense that . . .
would have been punishable as one or more of the offenses described in
subdivision (c) of Section 290” shall register as a sex offender. Section
290(c) includes possession of child pornography in violation of Cal. Penal
Code § 311.1 in its list of described offenses requiring sex offender regis-
tration.
9
Federal law, in turn, requires that, “[t]he court shall order, as an
explicit condition of supervised release for a person required to register
7488 UNITED STATES v. COLLINS
such, he will be subject to Cal. Penal Code § 3003.5(b)’s resi-
dency restriction, which is substantially similar to Condition
15’s.10 See, e.g., U.S. v. Davidson, 246 F.3d 1240, 1243-44
(9th Cir. 2001) (explaining that “Section 290[ ] requires any
person who has been convicted of one of a series of enumer-
ated state law offenses, or any federal offense that would have
been punishable as one of those enumerated state law
offenses, to register as a sex offender for the rest of his or her
life while residing in . . . or . . . while located within Califor-
nia”).
The residency restriction imposed by the court, however, is
not identical to the California Penal Code’s,11 and even if it
were, the district court still has a duty to analyze the appropri-
ateness of Condition 15 pursuant to the required federal sen-
tencing factors, notwithstanding any related state law
restrictions. See Blinkinsop, 606 F.3d at 1116 (“We assume
that district judges know the law and understand their obliga-
tion to consider all of the § 3553(a) factors.”) (internal quota-
tions omitted).
[18] In sum, it was procedural error for the district judge
to impose a residency restriction with Condition 15’s duration
under the Sex Offender Registration and Notification Act, that the person
comply with the requirements of that Act.” 18 U.S.C. § 3583. This was
ordered by Judge Selna, and Collins assented to these requirements in the
proceedings below.
10
Section 3003.5(b) provides, “[n]otwithstanding any other provision of
law, it is unlawful for any person for whom registration is required pursu-
ant to Section 290 to reside within 2000 feet of any public or private
school, or park where children regularly gather.” Cal. Penal Code
§ 3003.5(b).
11
Condition 15 is significantly broader and more restrictive than Cal.
Penal Code 3003.5(b). In addition to requiring Collins to reside at least
2,000 feet from parks and schools, Condition 15 adds to that list “swim-
ming pools, playgrounds, youth centers, video arcade facilities, or any
other places primarily used by persons under the age of 18,” and finally
requiring that any change in residence be pre-approved by his probation
officer.
UNITED STATES v. COLLINS 7489
and breadth as part of Collins’s federal sentence without an
analysis of the basis therefor per the federal sentencing
regime. While the practical effect of removing the 2,000-foot
restriction from his sentence may be minimal, the Penal
Code’s restriction in Section 3003.5(b) could be amended by
the state legislature to 1,000 feet or “within sight of” children,
during Collins’s life. The statute could also be repealed or
held unconstitutional by a state or federal court. Under his
current sentence, Collins would still be bound by the 2,000-
foot restriction of Condition 15, regardless of what changes
may be made to Section 3003.5(b). Moreover, Collins may
reside in some other state where he must conform to that
state’s law, and not California’s.
[19] We vacate the residency restriction and remand Col-
lins’s sentence to the district court to provide the appropriate
analysis and support for its imposed terms and conditions of
supervised release.
c. Substantive Reasonableness of Condition 15
The next step in our review of Collins’s conditions of
release would be to evaluate them for substantive reasonable-
ness. The sentencing court “enjoys significant discretion in
crafting terms of supervised release for criminal defendants,
including the authority to impose restrictions that infringe on
fundamental rights,” but that discretion “is not, however,
boundless.” United States v. Weber, 451 F.3d 552, 557 (9th
Cir. 2006). In Weber, the Court held that “conditions of super-
vised release are permissible only if they are reasonably
related to the goal of deterrence, protection of the public, or
rehabilitation of the offender.” Id. at 558.
There is good reason to suspect that the imposition of the
sweeping residency restriction in Condition 15 for life is sub-
stantively unreasonable for Collins’s conviction of possession
of child pornography.12 Because we have concluded the dis-
12
In this past year’s decision, United States v. Apodaca, for example, the
Court questioned the reasonableness of lifetime terms of supervised
7490 UNITED STATES v. COLLINS
trict court procedurally erred by failing to provide adequate
reasons for imposing Condition 15 where the reasons for such
a condition were not clear form the record alone, it follows
that we do not reach the question of the substantive reason-
ableness of Collins’s conditions of release. We remand the
determination of the substantive reasonableness of Condition
15 to the district court, as part of its reconsideration under 18
U.S.C. § 3553(a) for whether the residency restriction
involves “a greater deprivation of liberty than is reasonably
necessary.” Rudd, 622 F.3d at 1264 (quoting Daniels, 541
F.3d at 924).
d. Constitutional Challenges to Condition 15
Collins raises a number of constitutional challenges to the
restrictions posed by the lifetime term of supervised release
containing Condition 15. Collins claims that Condition 15’s
residency restriction is so overbroad and punitive that it vio-
lates four separate fundamental liberty interests: his right to
interstate travel; intrastate travel; freedom of association; and
freedom of assembly. Collins also claims that his fundamental
right to acquire, own, possess and enjoy property is unconsti-
tutionally abridged by Condition 15, because under the condi-
tion he must move whenever a restricted child-oriented
establishment is opened within a 2,000-foot radius of his resi-
dence. Finally, he contends that the term constitutes excessive
punishment prohibited by the Eighth Amendment.
The Court need not address the constitutional arguments
against Condition 15 at this time, having already decided to
remand the supervised release portion of Collins’s sentence to
release, generally, for possession only child pornography defendants, as
distinguishable from “hands on” or “contact” sex offenders, stating “there
is substantial evidence indicating that the current Guidelines-
recommended sentence for possession-only offenders may be difficult to
support.” 641 F.3d at 1084.
UNITED STATES v. COLLINS 7491
the district court for reconsideration. The Court also leaves
open, for now, the question of the constitutionality of the Cal-
ifornia Penal Code 3003.5(b) residency restriction for lower-
risk defendants of Collins’s class, as that restriction was not
objected to by Collins below, and the issue was not brought
before the Court on appeal.
IV. CONCLUSION
For the foregoing reasons, Collins’s conviction is
AFFIRMED. The portion of Collins’s sentence containing the
lifetime term of supervised release is VACATED and
REMANDED to the district court, with instructions for the
court to consider all the required factors under 18 U.S.C.
§ 3553(a), and adequately articulate its rationale for imposing
a term of supervised release with a duration and special condi-
tions that are reasonable in light of the circumstances of this
case and the goals of sentencing.