United States v. Johnston Blackhorse

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 14 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10505

Plaintiff-Appellee, D.C. No. 2:14-cr-00340-APG-PAL-1 v.

JOHNSTON BLACKHORSE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted December 21, 2018** San Francisco, California

Before: M. SMITH, NGUYEN, and BENNETT, Circuit Judges.

Johnston Blackhorse appeals the district court’s imposition of a special

condition of supervised release (Special Condition 4), as well as its finding that

Blackhorse violated federal obscenity statutes during supervised release. We

affirm.

* 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). 1. The district court did not plainly err in fashioning Special Condition 4. We

have repeatedly affirmed similar conditions of supervised release. See, e.g., United

States v. Daniels, 541 F.3d 915, 927–28 (9th Cir. 2008); United States v. Rearden,

349 F.3d 608, 618–20 (9th Cir. 2003); United States v. Bee, 162 F.3d 1232, 1234–

35 (9th Cir. 1998). Thus, the district court could not have plainly erred. See

United States v. Gnirke, 775 F.3d 1155, 1164 (9th Cir. 2015). And because

Special Condition 4 extends to material depicting and/or describing simulated

sexually explicit conduct involving children but not adults, it does not suffer from

the overbreadth concerns that we articulated in Gnirke. See id. at 1163. For

substantially the same reasons articulated in Daniels, Rearden, and Bee, we affirm

the district court’s imposition of Special Condition 4.1

2. The district court did not abuse its discretion in finding by a preponderance

of the evidence that Blackhorse violated the obscenity statutes. Before the district

court, Blackhorse did not clearly argue that his drawings are not obscene under

Miller v. California, 413 U.S. 15, 24–25 (1973). Nor did Blackhorse make an

evidentiary objection concerning the district court’s obscenity finding. See United

States v. Sesma-Hernandez, 253 F.3d 403, 409 (9th Cir. 2001). In any event, the

district court clearly articulated its findings that Blackhorse’s drawings are obscene

1 We also hold that the word “describing”—as used in Special Condition 4— is not unconstitutionally vague.

2 and that Blackhorse violated the obscenity statutes during supervised release. See

id. Even assuming the district court did not sufficiently articulate these findings,

any such error was harmless. See United States v. Perez, 526 F.3d 543, 547 (9th

Cir. 2008).

AFFIRMED.