United States v. Andrew Gibson ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10074
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-00287-KJD-
CWH-1
ANDREW JOHN GIBSON,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted March 8, 2021
Las Vegas, Nevada
Filed May 20, 2021
Before: Richard R. Clifton, Jacqueline H. Nguyen, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Bennett
2 UNITED STATES V. GIBSON
SUMMARY *
Criminal Law
The panel affirmed the district court’s imposition of two
conditions of supervised release—a place restriction and a
third-party risk notification condition—in a case in which
the defendant was convicted of receipt or distribution of
child pornography in violation of 18 U.S.C. § 2252A(a)(2).
The panel held that the place restriction, which forbids
the defendant from visiting “any place primarily used by
children,” is not unconstitutionally vague, as it is sufficiently
clear to provide the defendant notice of what types of places
he is forbidden to visit. The panel held that the place
restriction is not unconstitutionally overbroad, as it is
reasonable for protection of the public and appropriate as an
aid to the defendant’s rehabilitation. Consistent with past
cases, the panel interpreted the condition to contain a mens
rea of “knowingly.”
The panel held that the risk-notification condition—
which provides that if the probation officer determines that
the defendant poses a risk to another person (including an
organization), the probation officer may require him to
notify the person about the risk and the defendant must
comply with that instruction—is not unconstitutionally
vague. The panel explained that the limited discretion vested
in the probation officer as to when the condition should be
triggered, based on the specific risks posed by the
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. GIBSON 3
defendant’s criminal record, does not render it
unconstitutionally vague.
COUNSEL
Amy B. Cleary (argued) and Wendi L. Overmyer, Assistant
Federal Public Defenders; Rene L. Valladares, Federal
Public Defender; Office of the Federal Public Defender, Las
Vegas, Nevada; for Defendant-Appellant.
Elizabeth O. White (argued), Appellate Chief; Nancy M.
Olson, Assistant United States Attorney; Nicholas A.
Trutanich, United States Attorney; United States Attorney’s
Office, Las Vegas, Nevada; for Plaintiff-Appellee.
OPINION
BENNETT, Circuit Judge:
Defendant Andrew J. Gibson was convicted of a single
count of Receipt or Distribution of Child Pornography, in
violation of 18 U.S.C. § 2252A(a)(2) and sentenced to 168
months’ imprisonment. The district court imposed a lifetime
term of supervised release with both standard and special
supervised release conditions. Gibson challenges the place
restriction as unconstitutionally vague and overbroad and the
third-party risk notification condition as unconstitutionally
vague. 1 We have jurisdiction under 28 U.S.C. § 1291 and
1
We address Gibson’s other challenges in a memorandum
disposition filed concurrently with this opinion.
4 UNITED STATES V. GIBSON
18 U.S.C. § 3742 and affirm the district court’s imposition
of the challenged conditions.
I.
Law enforcement officers conducting a child
pornography investigation involving peer-to-peer file
sharing identified files containing child pornography. The
officers linked the files to an IP address connected to
Gibson’s residence, and executed a search warrant at the
residence. Gibson waived his Miranda rights and told the
investigators that he had been viewing child pornography
since he was twelve. A forensic examination of Gibson’s
devices revealed 307 child pornography images, 201 child
pornographic videos, and thousands of images of child
erotica. Gibson’s collection included images of
prepubescent minors and images portraying sadistic or
masochistic conduct or other depictions of violence. The
number of child pornographic images used for the
Guidelines calculation was 15,382. 2
Gibson was released on a personal recognizance bond
following his 2014 indictment. While on supervised release,
Gibson informed pretrial services that he would not go to jail
and that if anyone came to his home to violate his
constitutional rights, he would be “locked and loaded.” As
a result, Gibson was ordered to a halfway house. Gibson was
then involved in a physical altercation with halfway house
staff when they tried to take away his contraband
smartphone. Gibson surrendered the smartphone but no SIM
2
The district court noted that over time, Gibson developed a serious
addiction, and his search terms became more violent and sadistic.
UNITED STATES V. GIBSON 5
card was recovered. The court then revoked Gibson’s
pretrial release.
Gibson was convicted following a jury trial. The district
court sentenced Gibson to a 168-month prison term and a
lifetime term of supervised release.
Gibson appealed, and this court affirmed the conviction
but vacated the supervised release component of the
sentence and remanded for resentencing. United States v.
Gibson, 783 F. App’x 653, 654 (9th Cir. 2019). We held that
the place restriction which would have required Gibson not
to go to “any place where [he] know[s] children . . . are likely
to be” was unconstitutionally vague. Id. at 655 (alterations
in original). 3
On remand, the district court modified and suspended
some of the supervised release terms, and Gibson again
appealed.
II.
We “generally review conditions of supervised release
for abuse of discretion.” United States v. Evans, 883 F.3d
1154, 1159 (9th Cir. 2018). We review de novo claims that
conditions violate the Constitution. Id. at 1160. “The
burden of establishing the necessity of any condition falls on
the government.” United States v. Rudd, 662 F.3d 1257,
1260 (9th Cir. 2011).
3
We allowed Gibson to re-raise challenges with the district court
regarding other aspects of his sentence, including the basis for imposition
of the lifetime term of supervised release and the scope of pornography-
restrictive conditions. Gibson, 783 F. App’x at 655.
6 UNITED STATES V. GIBSON
III.
Gibson argues that Special Condition 9—the place
restriction—is unconstitutionally vague and
unconstitutionally overbroad. The condition provides:
Place Restriction – Children Under 18 – You
must not go to, or remain at, any place
primarily used by children under the age of
18, including parks, schools, playgrounds
and childcare facilities. This condition
includes those places where members of your
family are present, unless approved in
advance and in writing by the probation
officer in consultation with the treatment
providers.
A.
Gibson contends that Special Condition 9 is
impermissibly vague because it “lacks notice as to what
‘primarily used by children’ means.” A condition is
unconstitutionally vague if it is not “sufficiently clear to
inform [the releasee] of what conduct will result in his being
returned to prison.” United States v. Guagliardo, 278 F.3d
868, 872 (9th Cir. 2002) (per curiam). Specifically, to be
constitutionally infirm, “the condition [must] define[] the
forbidden conduct in terms so vague that it fails to provide
people of ordinary intelligence with fair notice of what is
prohibited.” United States v. Sims, 849 F.3d 1259, 1260 (9th
Cir. 2017); see also United States v. Williams, 553 U.S. 285,
306 (2008) (“What renders a [condition] vague is not the
possibility that it will sometimes be difficult to determine
UNITED STATES V. GIBSON 7
whether the incriminating fact it establishes has been proved;
but rather the indeterminacy of precisely what that fact is.”). 4
Properly understood, the place restriction here is
sufficiently clear to provide Gibson notice of what types of
places he is forbidden to visit. The dictionary defines
“primarily” as: “for the most part: chiefly.” 5 Primarily,
Merriam-Webster.com, https://www.merriam-webster.com/
dictionary/primarily. The phrase “primarily used by
children” is not indeterminate. It means a place chiefly and
for the most part used by children. Even if it may not be
entirely clear whether a particular place is primarily used by
children, that does not render the condition
unconstitutionally vague. See Williams, 553 U.S. at 306.
We acknowledge that some schools (like universities)
and some parks (like national parks) are not primarily used
by children. But the condition does not bar Gibson from all
schools and all parks—only those “primarily used by
children under the age of 18.” The phrase “including parks,
schools, playgrounds and childcare facilities” lists examples
of places that may be “primarily used by children under the
age of 18.” So Gibson would not be barred, for example,
from Yosemite National Park simply because it is a “park”
or the University of Nevada simply because it is a “school,”
as neither is a place “primarily used by children under the
4
Williams evaluated a statute for vagueness. 553 U.S. at 306. We
have held that the principles that apply in determining whether a statute
is unconstitutionally vague also apply to conditions of supervised
release. See United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004).
5
To determine “the plain meaning of terms, we may consult the
definitions of those terms in popular dictionaries.” Metro One
Telecomms., Inc. v. Comm’r of Internal Revenue, 704 F.3d 1057, 1061
(9th Cir. 2012).
8 UNITED STATES V. GIBSON
age of 18.” But Gibson would be barred from elementary
schools and playground parks, because those places are
“primarily used by children under the age of 18.”
Gibson cites Rudd to support his argument, but it is
inapplicable here. First, we were explicit that we did “not
reach the question of the substantive reasonableness of the
2,000 foot residency restriction because we conclude[d that]
the district court erred procedurally.” Rudd, 662 F.3d at
1264. More importantly, Rudd dealt with a residency
restriction, id. at 1258–59, which could have made finding
housing difficult or even impossible and would have
subjected the defendant to potential violations based on
neighborhood changes around him that were outside his
control.
We hold that Special Condition 9 is not
unconstitutionally vague.
B.
Gibson also contends that the condition is
unconstitutionally overbroad, arguing that the phrase
“primarily used by” is all-inclusive and amorphous and bans
Gibson from going to “all schools, eateries, malls, movie
theaters, libraries, bowling [alleys], museums, and national
parks.” Citing Rudd, he also argues that the condition
deprives him of more liberty than necessary.
A condition may be overbroad if it “restrict[s] more of
the defendant’s liberty than necessary.” United States v.
Wolf Child, 699 F.3d 1082, 1090–91 (9th Cir. 2012). But a
condition is not overbroad if it “(1) [is] reasonably related to
the goals of deterrence, protection of the public, and/or
defendant rehabilitation; (2) involve[s] no greater
deprivation of liberty than is reasonably necessary to achieve
UNITED STATES V. GIBSON 9
these goals; and (3) [is] consistent with any pertinent policy
statements issued by the Sentencing Commission.” Id. at
1100 (citation omitted).
To succeed on his overbreadth challenge, Gibson must
show that the condition is unreasonable because it is “a
greater deprivation on his liberty than required to achieve
deterrence, public protection, and rehabilitation.” United
States v. Blinkinsop, 606 F.3d 1110, 1121 (9th Cir. 2010). In
rejecting challenges to place restrictions like the one at issue
here, we have noted that these conditions are “a standard
prohibition in child-pornography cases” and have upheld
them as reasonable. See id. (holding that “[b]ecause [the
condition] 6 addresses [the defendant’s] conduct, promotes
his rehabilitation, and protects the public, it generally does
not appear overbroad in achieving these results”); United
States v. Daniels, 541 F.3d 915, 928 (9th Cir. 2008)
(upholding a condition that prohibited the defendant from
“frequent[ing], or loiter[ing], within 100 feet of school
yards, parks, public swimming pools, playgrounds, youth
centers, video arcade facilities, or other places primarily
used by persons under the age of 18” (alterations in
original)); United States v. Rearden, 349 F.3d 608, 620 (9th
Cir. 2003) (holding that a condition prohibiting the
defendant from “frequenting or loitering within one hundred
feet of schoolyards, parks, public swimming pools,
playgrounds, youth centers, video arcade facilities, or other
places primarily used by children under the age of eighteen”
was reasonable).
6
The condition at issue in Blinkinsop was: “Defendant shall not go
to or loiter near school yards, parks, play grounds, arcades, or other
p[l]aces primarily used by children under the age of 18.” 606 F.3d at1119–20.
10 UNITED STATES V. GIBSON
Here, the district court found:
Over many years the Defendant has collected
a vast library of photos and videos of
children, not all of which are pornographic.
To permit him to go to parks and other places
which cater primarily to children for the
purpose of viewing those to whom he is
sexually attracted, may lead to viewing the
same kinds of material for which he stands
convicted as well as interfere with sex
offender treatment.
That Gibson does not have a history of physically abusing
children or loitering where there are children, does not mean
that he does not pose a future threat to children. Gibson had
a vast library of images of minors, including prepubescent
minors, and images portraying sadistic or masochistic
conduct or other depictions of violence. As the district court
noted:
Over many years, [Gibson] reached a level of
serious addiction where he progressed to
viewing increasingly violent and sadistic
behavior. His search terms included: “boy
hogtied,” “boy rape,” “drugged boy” and “14
year old boy forced into sex by group of
cowboys.” . . . The total number of child
pornography images for purposes of
guideline calculations is 15,382. The videos
included male adults engaged in anal
intercourse and fellatio with nude
prepubescent children some of which
included sadistic or masochistic conduct or
UNITED STATES V. GIBSON 11
other depictions of violence, including
bondage.
Special Condition 9 is reasonable for the protection of the
public. 7
In addition to protecting the public, this condition is also
appropriate as an aid to Gibson’s rehabilitation, because, as
the district court found, “permit[ting] [Gibson] to go to parks
and other places which cater primarily to children for the
purpose of viewing those to whom he is sexually attracted,
may lead to viewing the same kinds of material for which he
stands convicted as well as interfere with sex offender
treatment.”
The condition is broad, but that does not mean it violates
the Constitution. “[E]ven very broad conditions are
reasonable if they are intended to promote the probationer’s
rehabilitation and to protect the public.” Daniels, 541 F.3d
at 928 (citation and quotation marks omitted). As the
Supreme Court has stated, “[c]hild pornography harms and
debases the most defenseless of our citizens.” Williams, 553
U.S. at 307. Special conditions like this one, in
circumstances like these, are reasonable. 8
7
Gibson cites United States v. R.V., 157 F. Supp. 3d 207 (E.D.N.Y.
2016) for the proposition that there is “no causal connection . . . between
computer/Internet crimes and child sex abuse.” But the R.V. court
observed that “[r]esearchers disagree over the extent of overlap between
child pornography offenders and pedophilia, as well as child
pornography offenders and contact sexual offenders.” Id. at 239.
8
The condition provides: “This condition includes those places
where members of your family are present, unless approved in advance
and in writing by the probation officer in consultation with the treatment
12 UNITED STATES V. GIBSON
We hold that Special Condition 9 is not
unconstitutionally overbroad.
C.
Gibson also argues that the condition is both overbroad
and vague because it lacks “a mens rea requirement
restricting Gibson from going to or remaining in place[s] he
knows children are likely to be.” Consistent with our past
cases, we interpret the condition to contain a mens rea
element of “knowingly.” United States v. Vega, 545 F.3d
743, 750 (9th Cir. 2008); Wolf Child, 699 F.3d at 1100 n.9.
IV.
Gibson also challenges Standard Condition 12 as
unconstitutionally vague. Standard Condition 12 states:
If the probation officer determines that you
pose a risk to another person (including an
organization), the probation officer may
require you to notify the person about the risk
and you must comply with that instruction.
The probation officer may contact the person
and confirm that you have notified the person
about the risk.
providers.” Gibson argues that the condition impermissibly interferes
with his right and ability to interact with his own children and minor
family members in the future. But Gibson has no children and specified
no minor family members, and thus his challenge is merely hypothetical,
unlike the defendant in Wolf Child. See 699 F.3d at 1091, 1096–97. If
Gibson has children in the future, he can either ask his probation officer
for permission to interact with them or seek modification from the court.
UNITED STATES V. GIBSON 13
This is a standard condition promulgated by the Sentencing
Commission. As stated in our past cases, this condition is
read to limit the “risks” to those “posed by the defendant’s
criminal record.” See United States v. Magdrilia, 962 F.3d
1152, 1159 (9th Cir. 2020); see also Evans, 883 F.3d at 1164
(noting with approval the removal of “personal history or
characteristics” from the Sentencing Manual formulation of
the condition). A prior version of this standard condition
was repeatedly criticized, including by a Seventh Circuit
decision striking the provision as unconstitutional, because
it was “[h]opelessly vague.” See United States v. Hill, 818
F.3d 342, 345 (7th Cir. 2016). In response to this criticism,
the United States Sentencing Commission amended the
provision to the version challenged here by Gibson. 9 See
Evans, 883 F.3d at 1162–64. We struck the prior
“hopelessly vague” version in Evans, id. at 1163–64, but
Gibson argues that the new version is as infirm as the old
one.
The condition at issue in Evans required Evans, “[a]s
directed by the probation officer, to notify third parties of
risks that may be occasioned by [his] criminal record or
personal history or characteristics . . . .” Id. at 1163
(alterations in original) (quotation marks omitted). Like the
Seventh Circuit, we found this language impermissibly
vague because it left the defendant guessing as to whom he
would need to notify and what he would need to tell them.
Id. at 1163–64.
We stated that “[a] probationer must be put on clear
notice of what conduct will (and will not) constitute a
9
See U.S. Sentencing Comm’n, Amendments to the Sentencing
Guidelines 44 (2016), https://www.ussc.gov/sites/default/files/pdf/
amendment-process/reader-friendly-amendments/20160428_RF.pdf.
14 UNITED STATES V. GIBSON
supervised release violation.” Id. at 1164 (quoting United
States v. Soltero, 510 F.3d 858, 867 n.10 (9th Cir. 2007)).
But we then explained that “the Sentencing Commission
recognized as much when it amended the applicable
guideline to remove the ambiguous phrase ‘personal history
or characteristics’ and to clarify that a probation officer may
only require a defendant to notify specific persons of specific
risks that the defendant poses to those persons.” Id. (citing
U.S. Sentencing Guidelines Manual § 5D1.3(c)(12)). We
then remanded the case “for the district court to modify [the]
Standard Condition . . . in accordance with [our] opinion.”
Id. In other words, we were telling the district court to use
the constitutional new language in place of the
unconstitutional old language. And the language in Standard
Condition 12 is the exact language in the United States
Sentencing Guidelines Manual § 5D1.3(c)(12) to which we
referred.
In United States v. Magdirila, we struck down another
third-party risk notification condition 10 that did not track the
language in the amended Sentencing Guidelines Manual.
962 F.3d at 1158–59. We instructed that the “district court
may wish to consider the language in United States
Sentencing Guideline[s] Manual § 5D1.3(c)(12), which
suggests that a defendant’s notification obligations should be
limited to specific persons regarding specific risks posed by
the defendant’s criminal record.” Id. at 1159 (emphasis in
original).
10
“As directed by the probation officer, the defendant must notify
specific persons and organizations of specific risks posed by the
defendant to those persons and organizations and must permit the
probation officer to confirm the defendant’s compliance with such
requirement and to make such notifications.” United States v. Magdirila,
962 F.3d 1152, 1156 (9th Cir. 2020).
UNITED STATES V. GIBSON 15
Several non-precedential opinions of this court since
Evans have upheld third-party risk notification conditions
that track the language of the Guidelines Manual. United
States v. Jackson, 838 F. App’x 262, 265 (9th Cir. 2020)
(“This court has already affirmed the use of the challenged
condition.”); United States v. Pruitt, 839 F. App’x 90, 95
(9th Cir. 2020) (“The risk-notification condition is nearly
identical to the language in Sentencing Guideline[s] Manual
§ 5D1.3(c)(12), which we approved in [Magdirila] and
[Evans].”); United States v. Burleson, 820 F. App’x 567,
569–70 (9th Cir. 2020) (same); United States v. McPherson,
808 F. App’x 450, 452 (9th Cir. 2020) (same); United States
v. Oseguera, 793 F. App’x 579, 581 (9th Cir. 2020) (same);
United States v. Davis, 785 F. App’x 374, 376 (9th Cir.
2019) (same).
And there is nothing unconstitutionally vague about
Standard Condition 12. The probation officer makes the
determination of the nature of the risk, and to whom the
warning must be given by the probationer. And,
importantly, the probation officer must give the probationer
a specific instruction and the probationer “must comply with
that instruction.”
Gibson’s contention that the condition cannot be “saved
by vesting discretion in the probation officer,” is unavailing.
As we noted in Magdirila, the risks referenced in the
condition are limited to the “specific risks posed by the
defendant’s criminal record.” 962 F.3d at 1159. As such,
probation officers do not have unfettered discretion under
this condition. The limited discretion vested in the probation
officer as to when the condition should be triggered does not
render it unconstitutionally vague. See Evans, 883 F.3d at
1164. In fact, that bounded discretion is necessary, because,
as the district court here pointed out, requiring district court
16 UNITED STATES V. GIBSON
judges “to write a condition that would include every
possible scenario would take months,” and even then, it is all
but certain that not every situation could possibly be
captured. The condition in the Sentencing Guidelines
Manual that we have endorsed multiple times may be
flexible, but it is sufficiently certain to withstand
constitutional scrutiny. To the extent that there was any
ambiguity in our holdings in Evans and Magdirila, there is
no longer: Standard Condition 12 is constitutional and may
be imposed in appropriate cases.
AFFIRMED.