United States v. Daniel Apodaca

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2019
• Docket: 17-50226
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50226

Plaintiff-Appellee, D.C. No. 2:08-cr-00793-VAP-1 v.

DANIEL APODACA, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Virginia A. Phillips, Chief Judge, Presiding

Submitted February 5, 2019** Pasadena, California

Before: GOULD, NGUYEN, and OWENS, Circuit Judges.

Defendant-Appellant Daniel Apodaca appeals from the district court’s order

denying his motion for early termination of lifetime supervised release. As the

parties are familiar with the facts, we do not recount them here. We affirm.

1. Apodaca argues that the district court erred by (1) overstating the volume

* 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). of Apodaca’s child pornography collection, and (2) understating the number of

months Apodaca had already served on supervised released. We review for plain

error because Apodaca failed to object to these factual determinations before the

district court. See United States v. Christensen, 732 F.3d 1094, 1101 (9th Cir.

2013). Assuming without deciding that the district court misstated those facts, the

district court did not plainly err because Apodaca failed to show a “reasonable

probability” that the district court would have otherwise terminated supervised

release. United States v. Joseph, 716 F.3d 1273, 1280 (9th Cir. 2013) (quoting

United States v. Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011)).

2. Apodaca also contends that the district court abused its discretion by

failing to evaluate on the record the Probation Office’s finding that Apodaca posed

a low risk of recidivism. However, the district court acknowledged that the

Probation Office considered Apodaca a low risk for recidivism and implicitly

rejected this ground for early termination. See United States v. Emmett, 749 F.3d

817, 821 (9th Cir. 2014) (explaining that the district court “must state the court’s

reasons for rejecting ‘nonfrivolous’ arguments,” but “adequate explanation in some

cases may also be inferred from . . . the record as a whole” (quoting United States

v. Carty, 520 F.3d 984, 992 (2008))). Thus, the district court adequately explained

its decision.

3. Finally, Apodaca argues that the district court abused its discretion by

2 denying early termination of supervised release based on the seriousness of child

pornography crimes in general, rather than facts specific to Apodaca. However,

the district court properly considered the relevant factors of 18 U.S.C. § 3553,

including both offense- and defendant-specific facts. See United States v.

Amezcua-Vasquez, 567 F.3d 1050, 1057 (9th Cir. 2009). For example, the district

court relied on Apodaca’s admission that he had benefitted from the counseling he

received on supervised release. Thus, the district court adequately considered facts

specific to Apodaca in denying early termination of supervised release.

AFFIRMED.