United States v. Albert Garza

573 F. App'x 670

Opinion

MEMORANDUM **

Albert Garza appeals his conviction and sentence on child pornography charges. In a concurrently filed opinion we address his competency argument. Here, we address his remaining challenges:

The district court did not plainly err by entering judgment on both counts of his conviction in violation of the Double Jeopardy Clause. This case is materially indistinguishable from United States v. Teague, 722 F.3d 1187, 1192 (9th Cir.2013). Because we reject this challenge to Garza’s conviction, we also reject the dependent challenge to Garza’s sentence.

Nor did the district court plainly err by awarding Garza a two-level “distribution” enhancement under § 2G2.2(b)(3)(F) or by not giving Garza a two-level reduction under § 2G2.2(b)(l) for, essentially, not distributing. A district court can’t commit plain error when there is no binding precedent to guide it and the circuits are split. United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Garza admits that there was 1 no binding precedent on this issue and that the circuits are split. Accordingly, Garza can’t show plain error.

Finally, we accept one of Garza’s challenges to special condition of supervised release # 7. Garza argues that the condition’s use of the phrase “sexually explicit” makes it overbroad. We rejected this argument in United States v. Daniels, 541 F.3d 915, 927 (9th Cir.2008), and we reject it again here. Garza also argues that the condition’s use of the word “frequent” makes it overbroad. He’s right. Conditions of supervised release are permissible only if they “involve no greater deprivation of liberty than is reasonably necessary for the purposes of supervised release.” United States v. Goddard, 537 F.3d 1087, 1089 (9th Cir.2008). Because special condition # 7 would prohibit Garza from visiting any gas station or grocery store that sold adult magazines, it’s impermissibly overbroad.

Accordingly, we vacate only the judgment as it pertains to supervised release and remand with instructions that special condition # 7 be modified.

AFFIRMED in part, VACATED in part, and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Cir. R. 36-3.

1 . We have since decided the relevant point adversely to Garza's position. See United States v. Vallejos, 742 F.3d 902 (9th Cir.2014).