United States v. John Merchberger, III , 668 F. App'x 268 ( 2016 )

FILED
NOT FOR PUBLICATION
AUG 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-30147
Plaintiff - Appellee, D.C. No. 9:14-cr-00027-DLC-1
v.
MEMORANDUM*
JOHN MERCHBERGER, III,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Argued and Submitted June 6, 2016
Seattle, Washington
Before: PAEZ and BYBEE, Circuit Judges and TIGAR,** District Judge.
Defendant-Appellant John Merchberger, III, appeals the imposition of two
conditions on his lifetime supervised release. This Court reviews the district
court’s imposition of a supervised release condition for abuse of discretion. United
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Jon S. Tigar, District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
States v. Wolf Child, 699 F.3d 1082, 1089 (9th Cir. 2012). “In applying this
standard of review, we give considerable deference to a district court’s
determination of the appropriate supervised release conditions, recognizing that a
district court has at its disposal all of the evidence, its own impressions of a
defendant, and wide latitude.” United States v. Stoterau, 524 F.3d 988, 1002 (9th
Cir. 2008) (internal quotation marks omitted). We have jurisdiction under 28
U.S.C. § 1291 and affirm.
First, the district court did not abuse its discretion by imposing Condition 8
on Merchberger, which limits his access to “any materials depicting sexually
explicit conduct as defined in 18 U.S.C. § 2256(2)(A), if the materials, taken as a
whole, are primarily designed to arouse sexual desire.” This condition reasonably
limits Merchberger’s access to sexually explicit material while ensuring that his
First Amendment right to access protected speech is not restricted more than
reasonably necessary. See United States v. Gnirke, 775 F.3d 1155, 1166 (9th Cir.
2015) (approving of a condition that limited access to “any materials with
depictions of ‘sexually explicit conduct’ involving adults, defined as explicit
sexually stimulating depictions of adult sexual conduct that are deemed
inappropriate by Gnirke’s probation officer”).
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Second, the district court did not abuse its discretion by imposing Condition
10 on Merchberger, which limits his access to computers or other devices
connected to the internet without the prior approval of his probation officer. At
oral argument, Merchberger’s counsel clarified that he challenges this condition
based on its limitation of Merchberger’s access to the internet rather than
computers more generally. However, our case law makes clear that such
limitations are not an abuse of discretion. See United States v. Quinzon, 643 F.3d
1266, 1272–73 (9th Cir. 2011); United States v. Goddard, 537 F.3d 1087, 1091
(9th Cir. 2008); United States v. Rearden, 349 F.3d 608, 620–21 (9th Cir. 2003).
Our decision in United States v. Riley, 576 F.3d 1046, 1049–50 (9th Cir.
2009), does not assist Merchberger. In Riley, we struck down a lifetime
supervision condition that completely banned the defendant from certain categories
of internet content, regardless of whether his probation officer approved of his
access. See id. at 1049. Here, by contrast, the condition only requires
Merchberger to obtain prior approval from his probation officer, a situation we
explicitly contrasted in Riley. See id.AFFIRMED.
3