United States v. Jorge De Los Santos

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 27, 2020
• Docket: 19-50086
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 27 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50086

Plaintiff-Appellee, D.C. No. CR 18-477-PA

v. MEMORANDUM JORGE DE LOS SANTOS,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted August 10, 2020 Pasadena, California

Before: CALLAHAN and BUMATAY, Circuit Judges, and WATSON,** District Judge.

Defendant, Jorge De Los Santos, pleaded guilty to possession of child

pornography in 2018. As part of Defendant’s plea agreement he agreed to not

oppose certain conditions of supervised release, including one condition at issue in

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael H. Watson, United States District Judge for the Southern District of Ohio, sitting by designation. 1 this case—i.e. “Defendant shall not reside within direct view of school yards,

parks, public swimming pools, playgrounds, youth centers, video arcade facilities,

or other places primarily used by persons under the age of 18.” Shortly before

sentencing, the district court provided the parties with notice of the conditions of

supervised release it intended to impose. Instead of prohibiting Defendant from

living within “direct view” of places frequented by minors, the district court’s

proposed conditions prohibited Defendant from living within 2,000 feet of those

locations.

At sentencing, Defendant objected to this condition, but he did not offer any

support for his objection beyond referring to the plea agreement’s “direct view”

restriction. The Government did not take a position on the 2,000-foot restriction.

The district court provided numerous reasons for the 2,000-foot restriction,

including that Defendant possessed many more images and videos than necessary

to receive the highest enhancement under the Guidelines, with some of these

images depicting infants and/or sadistic or masochistic conduct; admitted having

an interest in pornography involving children between the ages of 10 and 15; and

had a long history of viewing child pornography.1

The district court imposed a below-Guidelines custodial sentence of 46

1 While the district court did not cite this as a reason for the enhanced condition, Defendant’s presentence report noted that he was attracted to children he saw in public places. 2 months’ imprisonment along with a lifetime term of supervised release that

included the 2,000-foot residency restriction.

Defendant appeals only the 2,000-foot residency restriction. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

1. We review the district court’s imposition of the 2,000-foot residency

restriction for an abuse of discretion. See United States v. Wolf Child, 699 F.3d

1082, 1089 (9th Cir. 2012). “Because ‘a district court has at its disposal all of the

evidence, its own impressions of a defendant, and wide latitude, . . . we give

considerable deference to [its] determination of the appropriate supervised release

conditions.’” Id. (quoting United States v. Weber, 451 F.3d 552, 557 (9th Cir.

2006)).

2. The district court considered the factors listed at 18 U.S.C. § 3553(a), as

it was required to do. See 18 U.S.C. § 3583(d). It explained how the 2,000-foot

residency restriction was “reasonably related to the goals of deterrence, protection

of the public, and/or defendant rehabilitation,” “involve[d] no greater deprivation

of liberty than [was] reasonably necessary to achieve those goals,” and was

“consistent with any pertinent policy statements issued by the Sentencing

Commission pursuant to 28 U.S.C. § 994(a).” See United States v. Napulou, 593

F.3d 1041, 1044 (9th Cir. 2010).

3. Defendant has not shown that it was substantively unreasonable for the

3 district court to impose a 2,000-foot residency restriction. The district court

explained that it was concerned about potential living situations where Defendant

would not be in direct view of a place frequented by minors but, nevertheless,

would have children frequently walking past Defendant’s home—for example, if

he lived around the corner from a school. Given Defendant’s admission that he

was sexually attracted to minors, including minors he saw in public, the district

court’s concern was not “illogical, implausible, or without support in inferences

that may be drawn from the record.” See United States v. Hinkson, 585 F.3d 1247,

1262 (9th Cir. 2009) (en banc). Even if the regular presence of children is unlikely

to lead Defendant to physically harm a child (something we need not decide), it is

logical to infer that it could cause Defendant to relapse into viewing child

pornography.

4. On appeal, Defendant argues that the 2,000-foot restriction may severely

restrict his housing options and make rehabilitation more difficult. This argument

finds some support in In re Taylor, 60 Cal. 4th 1019 (2015), United States v. Rudd,

662 F.3d 1257 (9th Cir. 2011), and United States v. Collins, 684 F.3d 873 (9th Cir.

2012). However, Defendant did not present evidence supporting this argument at

sentencing or even mention this potential concern when he objected to the

modified condition. Therefore, the district court did not abuse its discretion by not

taking this into account when fashioning its sentence.

4 AFFIRMED.