United States v. Albert Carrasco

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 5, 2023
• Docket: 21-50290
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 5 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-50290

Plaintiff-Appellee, D.C. Nos. 2:20-cr-00424-PA-1 2:20-cr-00424-PA v.

ALBERT CARRASCO, AKA DL, AKA MEMORANDUM * Maxpower2330,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted June 30, 2023** Pasadena, California

Before: N.R. SMITH, LEE, and VANDYKE, Circuit Judges.

Defendant Albert Carrasco pleaded guilty to possession of child pornography

and was sentenced to forty months imprisonment and a twenty-year term of

supervised release. He appeals a supervised release condition that restricts where he

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). can reside.

As part of his plea agreement, Carrasco agreed to a supervised release term

that prohibited him from “resid[ing] within direct view 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.” Before his sentencing hearing, the

district court informed the parties that it was considering imposing a residency

restriction prohibiting him from residing within 2,000 feet of such venues rather than

the direct view restriction they agreed on. At the sentencing hearing, over Carrasco’s

written and oral objection, the district court imposed a 1,500-foot restriction.

Carrasco now appeals, challenging the imposition of the 1,500-foot restriction.

We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and

review for an abuse of discretion. United States v. Bainbridge, 746 F.3d 943, 946

(9th Cir. 2014). We affirm.

Carrasco first claims that the district court abused its discretion by imposing

the 1,500-foot restriction. When imposing a supervised release condition, a district

court must consider relevant factors set forth in 18 U.S.C. § 3553(a). 18 U.S.C.

§ 3583(c). A supervised release condition must be reasonably related to the

§ 3553(a) factors, “involve[] no greater deprivation of liberty than is necessary,” and

be “consistent with the pertinent policy statements issued by the Sentencing

Commission.” 18 U.S.C. § 3583(d); see also United States v. Wolf Child, 699 F.3d

2 1082, 1090 (9th Cir. 2012). Under these standards, the district court did not abuse

its discretion by imposing a 1,500-foot restriction.

The district court explained that the residency restriction is reasonably related

to the nature and circumstances of Carrasco’s offense. He both possessed child

pornography and was willing to make it available to others. His conduct was at a

point where he was unable to control his collection of images and kept it with him

throughout the day on his cellphone. He failed to take full responsibility for his

conduct. And he repeatedly committed pretrial release violations, demonstrating

poor adjustment to release. Further, at the time of sentencing, it was not clear what

triggers Carrasco’s behavior, and the district court was reasonably concerned that

“the daily presence of school-aged children near a residence might cause [him] to

reoffend by watching child pornography.” See United States v. De Los Santos, 827

F. App’x 757, 758 (9th Cir. 2020). In light of all these specific concerns, the district

court concluded that a direct view restriction would not adequately protect children.

The district court did not abuse its discretion when it determined that a 1,500-

foot restriction is reasonably related to the § 3353(a) factors and the goals of

deterrence, public safety, and rehabilitation, and is consistent with any pertinent

policy statements issued by the Sentencing Commission. United States v. Gutierrez-

Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (“The weight to be given the various

[sentencing] factors in a particular case is for the discretion of the district court.”).

3 And although the distance restriction makes housing harder to find, it does not

infringe on Carrasco’s liberty more than reasonably necessary to accomplish the

sentencing goals of deterrence, public safety, and rehabilitation. Considering his

particular circumstances, the distance-based restriction is substantively reasonable.

See In re Taylor, 60 Cal. 4th 1019, 1042 (2015); United States v. Rudd, 662 F.3d

1257, 1264–65 (9th Cir. 2011); United States v. Collins, 684 F.3d 873, 892 (9th Cir.

2012). 1

Carrasco also claims that the district court committed procedural error.2 Each

of his arguments fail. The district court did not plainly err by relying on its

experience in similar cases to reject Carrasco’s unsupported argument that the

restriction would make it difficult for him to find housing. See United States v.

Sanchez-Martinez, 537 F. App’x 693, 695 (9th Cir. 2013). Nor did the district court

plainly err by shifting the burden to prove that the restriction was unreasonable.

Although some caselaw supports his concerns, see, e.g., In re Taylor, 60 Cal. 4th at

1041–42, the district court was not required to accept Carrasco’s claim given its

experience with similar cases. Moreover, even assuming the district court erred, it

1 As for Carrasco’s argument that the residency restriction is unconstitutional, “illegality of a condition of supervised release is not a proper ground for modification.” United States v. Gross, 307 F.3d 1043, 1044 (9th Cir. 2002). 2 Because he failed to raise these challenges before the district court, we apply the plain error standard of review. United States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009).

4 did not prejudice Carrasco; the district court had ample reasons on the record before

it to apply the 1,500-foot restriction, which was supported by Carrasco’s particular

circumstances and furthered the sentencing goals of deterrence, public safety, and

rehabilitation.

Because the district court did not abuse its discretion or plainly err by

imposing a 1,500-foot residency restriction, we

AFFIRM. 3

3 Carrasco’s motion to file a supplemental brief is denied as moot.