United States v. Scott Becker , 682 F.3d 1210 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 11-30250
Plaintiff-Appellee, D.C. No.
v.  4:05-cr-00085-
SCOTT ANDREW BECKER, SEH-1
Defendant-Appellant.
 OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted May 7, 2012*
Seattle, Washington
Filed June 19, 2012
Before: Ronald M.Gould, Jay S. Bybee, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Gould
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
7091
7092 UNITED STATES v. BECKER
COUNSEL
Anthony R. Gallagher, Federal Defenders of Montana, Great
Falls, Montana, for the defendant-appellant.
UNITED STATES v. BECKER 7093
Michael W. Cotter, United States Attorney, Marcia Hurd,
Assistant United States Attorney, Billings, Montana, for the
plaintiff-appellee.
OPINION
GOULD, Circuit Judge:
Scott Andrew Becker (“Becker”) pled guilty to knowingly
taking or receiving obscene matters from an interactive com-
puter service in violation of 18 U.S.C. § 1462, a crime that
does not categorically constitute a “sex offense” as defined by
the Sex Offender Registration and Notification Act
(“SORNA”). See 42 U.S.C. § 16911(5)(A). At the change of
plea proceedings, Becker stated, “I believe that I am guilty of
the charges and did download child pornography or possess
child pornography during the time said.” The district court
sentenced Becker to a 60-month custodial term followed by
a 3-year supervised release term. The district court imposed
several conditions of supervised release, including the
requirement that Becker complete a sex offender treatment
program.
After completing his custodial sentence and beginning
supervised release, Becker violated the terms of his super-
vised release by, inter alia, not attending sex offender treat-
ment. Becker then appeared before the same district court
judge who had imposed the initial sentence. The district court
revoked Becker’s supervised release, and, along with impos-
ing a 9-month custodial term followed by a new 27-month
supervised release term, ordered Becker to register as a sex
offender pursuant to SORNA.1 Becker now appeals the dis-
trict court’s imposition of this condition.
1
42 U.S.C. § 16913(a); see also United States v. Begay, 622 F.3d 1187,
1191 (9th Cir. 2010) (“SORNA’s registration requirements applied imme-
diately and retroactively to all sex offenders regardless of when they were
convicted.”).
7094 UNITED STATES v. BECKER
Normally, “[w]e review the district court’s imposition of
supervised release conditions for abuse of discretion.” United
States v. King, 608 F.3d 1122, 1130 (9th Cir. 2010). At sen-
tencing, however, Becker, with the assistance of counsel, did
not object to the imposition of the SORNA registration condi-
tion. Consequently, we review Becker’s challenge to that con-
dition for plain error. See United States v. Hammons, 558 F.3d
1100, 1103 (9th Cir. 2009). Plain error is “(1) error, (2) that
is plain, and (3) that affect[s] substantial rights. If all three
conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error
seriously affect[s] the fairness, integrity, or public reputation
of judicial proceedings.” United States v. Cotton, 535 U.S.
625, 631 (2002) (internal quotation marks and citations omit-
ted).
Becker argues that the district court committed plain error
by not making findings of fact that he was a sex offender
under SORNA and by not otherwise articulating its reasons
for imposing the SORNA registration requirement. We dis-
agree.
[1] We have previously applied a modified categorical
approach to classify an underlying offense as a sex offense
under SORNA for the purpose of determining whether
SORNA registration was required. See United States v. Mi
Kyung Byun, 539 F.3d 982, 990-94 (9th Cir. 2008) (conclud-
ing “that Congress contemplated a non-categorical approach
as to the age of the victim in determining whether a particular
conviction is for a ‘specified offense against a minor,’ ” and
that “the underlying facts of a defendant’s offense are perti-
nent in determining whether she has committed a ‘specified
offense against a minor’ and is thus a sex offender”).2 Here,
2
In Mi Kyung Byun, we relied on the appellant’s admissions in a plea
agreement about the underlying facts of her offense conduct to conclude
that her crime was a sex offense under SORNA, even though she pled
guilty to an offense that is not categorically a sex offense under SORNA.
Id. at 994.
UNITED STATES v. BECKER 7095
Becker’s admissions made at his change of plea proceedings
establish that Becker’s crime was a “sex offense” as defined
by SORNA. See 42 U.S.C. § 16911(5)(A)(ii) (a “specified
offense against a minor” is a sex offense under SORNA),
(7)(G) (possession, production or distribution of child pornog-
raphy is a specified offense against a minor); see United
States v. Snellenberger, 548 F.3d 699, 701 (9th Cir. 2008) (en
banc) (noting that we may rely on a plea colloquy in conduct-
ing modified categorical analysis). Because Becker is a sex
offender under SORNA, the district court was required to
impose the registration condition. See 18 U.S.C. § 3583(d)
(“The court shall order, as an explicit condition of supervised
release for a person required to register under [SORNA] that
the person comply with the requirements of that Act.”).
[2] Even if the district court were not required to impose
SORNA registration as a mandatory condition of supervised
release, the district court did not commit plain error by impos-
ing registration as a discretionary condition. See id. (authoriz-
ing the district court to impose “any other [reasonable]
condition it considers to be appropriate”). We have said that
“the district court ‘need not state at sentencing the reasons for
imposing each condition of supervised release, if it is apparent
from the record.’ ” United States v. Rudd, 662 F.3d 1257,
1261-62 (9th Cir. 2011) (quoting United States v. Blinkinsop,
606 F.3d 1110, 1119 (9th Cir. 2010), emphasis omitted). We
conclude that it is apparent from the record here that the regis-
tration condition was reasonable. Becker has not met his bur-
den of proving the contrary. Moreover, the imposition of the
SORNA registration condition does not impair the fairness,
integrity or reputation of the court, and so we will not exercise
discretion to relieve Becker of this condition.
AFFIRMED.