NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 9 2026
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 24-5503 Plaintiff-Appellee, D.C. No. 2:21-cr-00105-DAD v. MEMORANDUM* BRENT HOOTON, Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding Argued and Submitted December 1, 2025 San Francisco, California
Before: R. NELSON, COLLINS, and VANDYKE, Circuit Judges.
Defendant-Appellant Brent Hooton appeals the sentence he received after
pleading guilty to production and distribution of child pornography in violation of
18 U.S.C. §§ 2251(a), 2252(a)(2). Specifically, he challenges the district court’s
imposition of various conditions of supervised release that will apply after he
completes his 324-month term of imprisonment. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm in part, vacate in part, and
remand.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Special Condition No. 5, in relevant part, prohibits Hooton from
“loiter[ing] within 100 feet of school yards, parks, playgrounds, arcades, or other
places primarily used by children under the age of 18.” Special Condition No. 7
relatedly restricts Hooton from “resid[ing] in direct view of places such as school
yards, parks, public swimming pools, or recreational centers, playgrounds, youth
centers, video arcade facilities, or other places primarily used by children under the
age of 18.” On appeal, Hooton contends that Special Conditions No. 5 and 7 are
impermissibly overbroad and unconstitutionally vague. Because Hooton failed to
raise an objection to these conditions below, our review is only for “plain error.”
United States v. Nishida, 53 F.4th 1144, 1150 (9th Cir. 2022). “Plain error is
(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. (citation
omitted). “If these three conditions are met, we may exercise our discretion to
notice an error that seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (citation omitted).
Hooton argues that these two conditions are overbroad because they can be
construed as applying to the various enumerated facilities even if those facilities are
not “primarily used by children under the age of 18.” We reject this contention. As
a matter of grammatical structure, the final catch-all phrase “other places primarily
used by children” clearly denotes that all of the preceding listed items are covered
only if they are “primarily used by children.” So construed, these two conditions are
2 not overbroad. See United States v. Gibson, 998 F.3d 415, 420–21 (9th Cir. 2021)
(holding that a condition comparable to Special Condition No. 5 is not overbroad).
And to the extent that Hooton challenges, on vagueness grounds, the use of the
phrase “other places primarily used by children under the age of 18,” that contention
also fails under Gibson. See id. at 419 (holding that the phrase “primarily used by
children” is not “indeterminate” or “unconstitutionally vague” because “primarily”
signifies “a place chiefly and for the most part used by children” (simplified)).
Hooton argues that Special Condition No. 7 is vague and overbroad for the
additional reason that the use of the phrase “in direct view” in connection with the
enumerated places “effectively prevent[s] Hooton from residing in any urban
area.” We have previously rejected a plain-error challenge to a similar residency
condition that used the exact term, “in direct view,” that is challenged here. See
United States v. Daniels, 541 F.3d 915, 928 (9th Cir. 2008) (upholding, inter alia,
residency condition which prohibited the defendant from “resid[ing] within direct
view of” such places) (emphasis added)). Although the grounds asserted by Hooton
for challenging the condition differ from those raised in Daniels, we again find no
plain error. “Direct” denotes “[p]roceeding without interruption,” without
“intervening persons, conditions, or agencies,” AMERICAN HERITAGE DICTIONARY
511 (5th ed. 2018), and the condition therefore prohibits only residing in those
places within the immediate and proximate view of the enumerated facilities.
3 Moreover, Condition No. 7’s additional condition that Hooton’s “residence must be
pre-approved by the probation officer” further mitigates any vagueness concerns.
2. For the first time on appeal, Hooton also challenges Special Condition
No. 8 as overbroad. That condition provides:
You must not possess, own, use, view, or read any material depicting and/or describing sexually explicit conduct involving adults or children, including computer images, pictures, photographs, books, writings, drawings, videos, or video games. “Sexually explicit conduct” as defined in 18 U.S.C. § 2256(2) means actual or simulated (a) sexual intercourse, including genital-genital, oral-genital, or oral-anal, whether between the same or opposite sex; (b) bestiality; (c) masturbation; (d) sadistic or masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any person.
Hooton argues that this condition is unconstitutionally overbroad under our
controlling decisions in United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), and
United States v. Cope, 527 F.3d 944 (9th Cir. 2008). We agree.
In Gnirke, we held that a similar condition of supervised release “sweeps too
broadly by limiting [defendant’s] access to non-pornographic depictions of
‘sexually explicit conduct’ involving only adults,” “however fleeting or veiled, and
regardless of how insignificant it may be to the overall content of an art exhibit,
play, or movie.” 775 F.3d at 1163–65. Although Gnirke itself is arguably
distinguishable because the condition there prohibited, not merely possession of
such materials, but also “patroniz[ing] any place where such materials or
entertainment are available,” id. at 1163, we subsequently extended Gnirke’s
4 holding to an indistinguishable possession restriction in United States v. Guerrero,
89 F.4th 694, 697–98 (9th Cir. 2023) (applying Gnirke to a similar restriction
against “view[ing] or possess[ing] any ‘visual depiction’ (as defined in 18 U.S.C.
§ 2256) . . . of ‘sexually explicit conduct’ (as defined in 18 U.S.C. § 2256)”).
Indeed, the restriction in this case, which is not limited to visual depictions, but
also includes “material . . . describing” such conduct, is even broader than the one
invalidated in Guerrero. Under Guerrero, we are constrained to find plain error
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 9 2026
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 24-5503 Plaintiff-Appellee, D.C. No. 2:21-cr-00105-DAD v. MEMORANDUM* BRENT HOOTON, Defendant-Appellant.
Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding Argued and Submitted December 1, 2025 San Francisco, California
Before: R. NELSON, COLLINS, and VANDYKE, Circuit Judges.
Defendant-Appellant Brent Hooton appeals the sentence he received after
pleading guilty to production and distribution of child pornography in violation of
18 U.S.C. §§ 2251(a), 2252(a)(2). Specifically, he challenges the district court’s
imposition of various conditions of supervised release that will apply after he
completes his 324-month term of imprisonment. We have jurisdiction under 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a). We affirm in part, vacate in part, and
remand.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. Special Condition No. 5, in relevant part, prohibits Hooton from
“loiter[ing] within 100 feet of school yards, parks, playgrounds, arcades, or other
places primarily used by children under the age of 18.” Special Condition No. 7
relatedly restricts Hooton from “resid[ing] in direct view of places such as school
yards, parks, public swimming pools, or recreational centers, playgrounds, youth
centers, video arcade facilities, or other places primarily used by children under the
age of 18.” On appeal, Hooton contends that Special Conditions No. 5 and 7 are
impermissibly overbroad and unconstitutionally vague. Because Hooton failed to
raise an objection to these conditions below, our review is only for “plain error.”
United States v. Nishida, 53 F.4th 1144, 1150 (9th Cir. 2022). “Plain error is
(1) error, (2) that is plain, and (3) that affects substantial rights.” Id. (citation
omitted). “If these three conditions are met, we may exercise our discretion to
notice an error that seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” Id. (citation omitted).
Hooton argues that these two conditions are overbroad because they can be
construed as applying to the various enumerated facilities even if those facilities are
not “primarily used by children under the age of 18.” We reject this contention. As
a matter of grammatical structure, the final catch-all phrase “other places primarily
used by children” clearly denotes that all of the preceding listed items are covered
only if they are “primarily used by children.” So construed, these two conditions are
2 not overbroad. See United States v. Gibson, 998 F.3d 415, 420–21 (9th Cir. 2021)
(holding that a condition comparable to Special Condition No. 5 is not overbroad).
And to the extent that Hooton challenges, on vagueness grounds, the use of the
phrase “other places primarily used by children under the age of 18,” that contention
also fails under Gibson. See id. at 419 (holding that the phrase “primarily used by
children” is not “indeterminate” or “unconstitutionally vague” because “primarily”
signifies “a place chiefly and for the most part used by children” (simplified)).
Hooton argues that Special Condition No. 7 is vague and overbroad for the
additional reason that the use of the phrase “in direct view” in connection with the
enumerated places “effectively prevent[s] Hooton from residing in any urban
area.” We have previously rejected a plain-error challenge to a similar residency
condition that used the exact term, “in direct view,” that is challenged here. See
United States v. Daniels, 541 F.3d 915, 928 (9th Cir. 2008) (upholding, inter alia,
residency condition which prohibited the defendant from “resid[ing] within direct
view of” such places) (emphasis added)). Although the grounds asserted by Hooton
for challenging the condition differ from those raised in Daniels, we again find no
plain error. “Direct” denotes “[p]roceeding without interruption,” without
“intervening persons, conditions, or agencies,” AMERICAN HERITAGE DICTIONARY
511 (5th ed. 2018), and the condition therefore prohibits only residing in those
places within the immediate and proximate view of the enumerated facilities.
3 Moreover, Condition No. 7’s additional condition that Hooton’s “residence must be
pre-approved by the probation officer” further mitigates any vagueness concerns.
2. For the first time on appeal, Hooton also challenges Special Condition
No. 8 as overbroad. That condition provides:
You must not possess, own, use, view, or read any material depicting and/or describing sexually explicit conduct involving adults or children, including computer images, pictures, photographs, books, writings, drawings, videos, or video games. “Sexually explicit conduct” as defined in 18 U.S.C. § 2256(2) means actual or simulated (a) sexual intercourse, including genital-genital, oral-genital, or oral-anal, whether between the same or opposite sex; (b) bestiality; (c) masturbation; (d) sadistic or masochistic abuse; or (e) lascivious exhibition of the genitals or pubic area of any person.
Hooton argues that this condition is unconstitutionally overbroad under our
controlling decisions in United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), and
United States v. Cope, 527 F.3d 944 (9th Cir. 2008). We agree.
In Gnirke, we held that a similar condition of supervised release “sweeps too
broadly by limiting [defendant’s] access to non-pornographic depictions of
‘sexually explicit conduct’ involving only adults,” “however fleeting or veiled, and
regardless of how insignificant it may be to the overall content of an art exhibit,
play, or movie.” 775 F.3d at 1163–65. Although Gnirke itself is arguably
distinguishable because the condition there prohibited, not merely possession of
such materials, but also “patroniz[ing] any place where such materials or
entertainment are available,” id. at 1163, we subsequently extended Gnirke’s
4 holding to an indistinguishable possession restriction in United States v. Guerrero,
89 F.4th 694, 697–98 (9th Cir. 2023) (applying Gnirke to a similar restriction
against “view[ing] or possess[ing] any ‘visual depiction’ (as defined in 18 U.S.C.
§ 2256) . . . of ‘sexually explicit conduct’ (as defined in 18 U.S.C. § 2256)”).
Indeed, the restriction in this case, which is not limited to visual depictions, but
also includes “material . . . describing” such conduct, is even broader than the one
invalidated in Guerrero. Under Guerrero, we are constrained to find plain error
here and, in conformity with Guerrero, we “remand with instructions that the
district court conform Special Condition [8] to our holding in Gnirke.” Id. at 698.
“Gnirke offered guidance for appropriately tailoring such restrictions, construing a
similar condition of supervised release to apply (1) to any materials with depictions
of ‘sexually explicit conduct’ involving children, as defined by 18 U.S.C.
§ 2256(2), and (2) to any materials with depictions of ‘sexually explicit conduct’
involving adults, defined as explicit sexually stimulating depictions of adult sexual
conduct that are deemed inappropriate by [Hooton’s] probation officer.” Id.
(simplified).
We also agree with Hooton that Special Condition No. 8 is plainly erroneous
under our decision in Cope. Like the condition invalidated in Cope, Special
Condition No. 8’s prohibition on accessing any material “depicting and/or
describing sexually explicit conduct involving adults or children . . . as defined in
5 18 U.S.C § 2256(2)” can be read as (1) “straightforwardly appl[ying] to [Hooton’s]
own presentence report, as well as copies of statutes and cases that [Hooton] might
need were he to bring a collateral challenge to an aspect of his sentence once he is
released from prison,” and (2) applying to “journal-writing or the writing of a
‘sexual biography’ that may be required elements of [Hooton’s] sex offender
treatment.” 527 F.3d at 957–58 (simplified). Accordingly, we remand to the
district court for the limited purpose of amending Special Condition No. 8 and
clarifying that the condition does not apply to the lawful possession of non-
contraband materials that are “necessary to, and used for, a collateral attack, or to
materials prepared or used for the purposes of his court-mandated sex offender
treatment.” Id. at 958; see also United States v. Knight, 122 F.4th 845, 849–50 (9th
Cir. 2024) (noting that nothing in Cope authorizes a defendant to possess
contraband, such as child pornography).
3. Hooton contends that Special Condition No. 9, which requires Hooton to
“attend, cooperate with, and actively participate in a sex offender treatment and
therapy program which may include, but is not limited to, risk assessment,
polygraph examination, and/or Visual Reaction Treatment,” impermissibly
delegates to the probation officer the decision whether Hooton’s sex-offender
treatment program will require his confinement in “an inpatient facility.” Nishida,
53 F.4th at 1155. Reviewing for plain error, we reject this argument. Unlike the
6 condition in Nishida, which authorized the probation officer to determine the
“location, modality, . . . and intensity” of the treatment program, id. at 1152
(emphasis added), Special Condition No. 9 contains no language that could be
construed as authorizing an inpatient program. Because we construe Special
Condition No. 9 as authorizing only outpatient programs, Hooton’s challenge to
that condition necessarily fails.
4. Finally, we reject Hooton’s argument that the district court failed to
orally pronounce the standard conditions of supervised release, in violation of our
decision in United States v. Montoya, 82 F.4th 640 (9th Cir. 2023) (en banc).
Hooton was given advance written notice of each of the recommended standard
conditions in the Presentence Report’s (“PSR”) Sentencing Recommendation, and
the standard conditions set forth therein are the same as those later incorporated
into the written judgment. At sentencing, after the district court twice confirmed
that Hooton had reviewed the PSR with his attorney, the district court orally
incorporated the “standard conditions” by an explicit on-the-record reference. The
district court thereby satisfied Montoya’s oral pronouncement requirement. See id.
at 651 (stating that oral pronouncement requirement may be satisfied through
incorporation by reference if “the defendant has been informed of the proposed
conditions of supervised release in advance of sentencing”).
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.