United States v. Steven Dock , 552 F. App'x 743 ( 2014 )

FILED
NOT FOR PUBLICATION JAN 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10060
Plaintiff - Appellee, D.C. No. 2:97-cr-00410-ROS-1
v.
MEMORANDUM*
STEVEN RYAN DOCK,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Roslyn O. Silver, Senior District Judge, Presiding
Submitted January 15, 2014**
San Francisco, California
Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.
Steven Ryan Dock appeals the above-guidelines sentence and five of the
special conditions of supervised release imposed by the district court. We have
jurisdiction under 28 U.S.C. § 1291.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Even if the district court erred in discussing Dock’s substance abuse problem
during the final disposition hearing, the district court did not commit plain error
because Dock has not shown “a reasonable probability that he would have received
a different sentence” if the district court had not referenced this problem. United
States v. Waknine, 543 F.3d 546, 554 (9th Cir. 2008). There is no evidence that
rehabilitative concerns affected either the court’s decision to impose a term of
imprisonment or its decision to impose an above-guidelines sentence. See Tapia v.
United States, 131 S. Ct. 2382, 2393 (2011). To the contrary, the district court
explained that it exceeded the guidelines “to protect the public from further
criminal conduct by [Dock],” which was a valid sentencing consideration. See 18
U.S.C. §§ 3553(a)(2)(B), 3582(a).
Because the parties agree that special conditions 6, 8, and 16 are vague, we
reverse and remand the imposition of those conditions to the district court for
further consideration.
Dock’s argument that the district court erred by failing to conduct an
individualized determination before imposing special conditions 12 and 13 also
fails under any standard of review. The district court did not have an obligation to
conduct an individualized determination before imposing a curfew (condition 12)
or requiring Dock to wear “appropriate outer clothing” (condition 13), because
2
these conditions do not implicate “particularly significant liberty interest[s],” such
as “the fundamental right to familial association,” United States v. Wolf Child, 699
F.3d 1082, 1091–92 (9th Cir. 2012), or “the constitutional interest inherent in
avoiding unwanted bodily intrusions or manipulations,” United States v. Stoterau,
524 F.3d 988, 1005 (9th Cir. 2008) (internal quotation marks omitted). Yong v.
I.N.S., 208 F.3d 1116, 1118 n.1 (9th Cir. 2000), is not to the contrary; it merely
recognizes that a person may be “in custody for habeas purposes” when living at a
facility that imposes a curfew. Further, the record supports the conclusion that
special conditions 12 and 13 are reasonably related to deterrence and protecting the
public, and involve no greater a deprivation of liberty than is reasonably necessary
for the purpose of supervised release. See United States v. Blinkinsop, 606 F.3d
1110, 1118–19 (9th Cir. 2010).
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
3