United States v. James Juan ( 2018 )

FILED
NOT FOR PUBLICATION
MAY 18 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10050
Plaintiff-Appellee, D.C. No.
4:16-cr-01347-CKJ-DTF-1
v.
JAMES DEREK JUAN, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Argued and Submitted April 13, 2018
San Francisco, California
Before: WARDLAW and HURWITZ, Circuit Judges, and OLIVER,** District
Judge.
James Derek Juan appeals the imposition of a sex offender evaluation
condition of supervised release. We review for abuse of discretion, United States
v. Gnirke, 775 F.3d 1155, 1159 (9th Cir. 2015), and we vacate the condition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Solomon Oliver, Jr., United States District Judge for
the Northern District of Ohio, sitting by designation.
The sex offender evaluation condition is substantively unreasonable. See
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Juan’s only
sexual offense occurred nearly three decades ago, when Juan was twelve. In the
intervening years, despite Juan’s frequent contact with and monitoring by law
enforcement, there is no evidence of any other history or characteristic of
inappropriate sexual conduct. Furthermore, Juan’s offense of conviction is entirely
unrelated to the facts and circumstances of his conduct as a child. Cf. United
States v. Johnson, 697 F.3d 1249, 1251 (9th Cir. 2012) (“Johnson’s current offense
involved possession of a gun, the same sort of weapon he used as a sexual
offender.”). Thus, there is no substantial nexus between the conduct underlying
Juan’s twenty-seven-year-old juvenile adjudication and any public safety rationale
that justifies the imposition of the sex offender evaluation condition today. 1 See
United States v. Wise, 391 F.3d 1027, 1032 (9th Cir. 2004); United States v. T.M.,
330 F.3d 1235, 1240 (9th Cir. 2003) (“Supervised release conditions predicated
upon twenty-year-old incidents, without more, do not promote the goals of public
protection and deterrence.”). While it is rare that we would find that an imposition
of a condition of supervised release was an abuse of discretion, where, as here,
1
We also note that neither the Probation Officer nor the government sought
such a condition.
2
there is insufficient basis in the record for its imposition, we must surely vacate the
condition.2
REVERSED; SUPERVISED RELEASE CONDITION VACATED.
2
We need not reach Juan’s remaining arguments challenging the imposition
of the sex offender evaluation condition of supervised release.
3