United States v. Fowlkes

135 F. App'x 77

Opinions

MEMORANDUM

Footnotes

•

*

Appellant Jesse Junior Fowlkes (“Fowlkes”) appeals special conditions of supervised release imposed on him by the district court as part of his sentence for receiving child pornography in violation of 18 U.S.C. § 2252A(a)(2)(B). We affirm.

Fowlkes contends that special condition number four violates his Fifth Amendment rights and is not reasonably related to his offense or personal characteristics. We construe condition four as allowing Fowlkes, in accordance with our recent decision in United States v. Antelope, 395 F.3d 1128 (9th Cir.2005), to retain his Fifth Amendment rights during any required polygraph testing. So construed, the condition poses no constitutional problems. We also hold that each of the treatment options potentially required by this condition is reasonably related to Fowlkes’ conviction for receipt of child pornography and his admissions that he fantasizes about and writes stories about young girls being raped. If, in the course of treatment, it becomes apparent that inpatient treatment is not reasonably related to Fowlkes’ rehabilitation or to the protection of the public, the district court has discretion to alter the condition at that time.

We review the other challenged conditions for plain error. See United States v. Jimenez, 258 F.3d 1120, 1124 (9th Cir.2001). The district court did not plainly err in granting the probation officer access to Fowlkes’ mental health records, see United States v. Lopez, 258 F.3d 1053, 1057 (9th Cir.2001), prohibiting Fowlkes from possessing materials depicting “sexually explicit conduct,” as defined by 18 U.S.C. § 2256(2), see United States v. Rearden, 349 F.3d 608, 619-20 (9th Cir.2003), prohibiting him from loitering or residing within certain distances of places primarily used by persons under the age of 18, see United States v. Bee, 162 F.3d 1232, 1235-36 (9th Cir.1998), or limiting his contact with minors. See id. Finally, the district court did not plainly err in requir ing Fowlkes to pay all or part of the costs of his treatment as directed by the Probation Officer. The court impliedly found that Fowlkes had the ability to pay and only delegated to the Probation Officer responsibility for determining the method and amount of payments. The defendant’s analogy to United States v. Gunning, 339 F.3d 948 (9th Cir.2003), which interprets not 18 U.S.C. § 3672 but the Mandatory Victims Restitution Act, is inapposite.

The sentence imposed by the district court is AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.