United States v. Jacob Forrest

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 20, 2019
• Docket: 18-10324
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 20 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-10324

Plaintiff-Appellee, D.C. No. 2:12-cr-00223-GMN-VCF-1 v.

JACOB FORREST, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Gloria M. Navarro, Chief Judge, Presiding

Submitted March 15, 2019** San Francisco, California

Before: W. FLETCHER, WATFORD, and HURWITZ, Circuit Judges.

Jacob Forrest challenges the 12-month term of supervised release imposed

upon revocation of his original term of supervised release. See 18 U.S.C.

§ 3583(h). He also contends that the district court plainly erred in imposing three

conditions of supervised release. We have jurisdiction under 28 U.S.C. § 1291.

* 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). Page 2 of 4

1. The district court did not abuse its discretion by imposing a 12-month

term of supervised release. Forrest committed three Grade C violations less than

four months into his initial three-year term of supervised release, including an

attempt to “defeat the drug testing process by utilizing a subterfuge.” On appeal,

Forrest raises a number of mitigating circumstances, but the district court properly

weighed his request for leniency against the severity of the violations and the

continued need for rehabilitative supervision. See United States v. Overton, 573

F.3d 679, 700 (9th Cir. 2009). Even if turmoil in Forrest’s family life precipitated

these violations, “[a] violation of the conditions of supervised release does not

obviate the need for further supervision, but rather confirms the judgment that

supervision was necessary.” United States v. Hurt, 345 F.3d 1033, 1036 (9th Cir.

2003).

2. We conclude that the district court plainly erred in imposing Special

Condition 1, which requires Forrest to undergo sex-offender treatment. Forrest

was convicted of attempted sexual assault in 1997, but “[s]upervised release

conditions predicated upon twenty-year-old incidents, without more, do not

promote the goals of public protection and deterrence.” United States v. T.M., 330

F.3d 1235, 1240 (9th Cir. 2003). The record does not support mandatory sex-

offender treatment, a much greater restraint on Forrest’s liberty than the previously

agreed-upon sex-offender evaluation. See United States v. Hohag, 893 F.3d 1190, Page 3 of 4

1193 (9th Cir. 2018). This sentencing error necessarily affected Forrest’s

substantial rights and the public perception of these judicial proceedings. See

United States v. LaCoste, 821 F.3d 1187, 1192 (9th Cir. 2016). We therefore

vacate Special Condition 1.

3. We conclude that the district court also plainly erred in imposing Special

Condition 7, which prohibits Forrest from viewing pornographic materials that

“would compromise [his] sex offense specific treatment.” A pornography ban is

permitted only if it deprives Forrest of no more liberty than is reasonably necessary

to further the purposes of supervised release. See United States v. Gnirke, 775

F.3d 1155, 1163, 1166 (9th Cir. 2015). As its language reflects, this condition is

linked to and depends on Special Condition 1. We therefore vacate Special

Condition 7.

4. Special Condition 8 authorizes the probation office to search Forrest’s

computers upon reasonable suspicion that he has violated his conditions of

supervised release and that evidence of the violation will be found on his

computers. A computer-search condition may be appropriate “so long as a district

court makes a factual finding establishing some nexus between computer use and

one of the goals” of supervised release. United States v. Bare, 806 F.3d 1011,

1017 (9th Cir. 2015). Because no such factual finding was made here, nor is any

nexus apparent from the record, the imposition of this condition was plain error. Page 4 of 4

This sentencing error satisfies the other two requirements of plain error review, as

well. See LaCoste, 821 F.3d at 1192. We therefore vacate Special Condition 8.

On remand, if the district court seeks to reimpose this condition, it must identify a

nexus to a goal of supervised release.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.