United States v. Kelly Garrett

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 13, 2018
• Docket: 16-50482
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-50482

Plaintiff-Appellee, D.C. No. 5:14-cr-00103-JGB-1 v.

KELLY JOHN GARRETT, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Jesus G. Bernal, District Judge, Presiding

Argued and Submitted November 14, 2018 Pasadena, California

Before: PAEZ, PARKER,** and CLIFTON, Circuit Judges.

Kelly Garrett appeals his sentence following his conviction on one count of

wire fraud under 18 U.S.C. §1343. He challenges the special conditions of

supervised released imposed by the district court. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a) and we affirm in part, vacate in part, and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. remand.

“A district judge may impose any supervised release condition she deems

appropriate, subject to three primary constraints. First, the condition must be

reasonably related to the nature and circumstances of the offense; the history and

characteristics of the defendant; or the sentencing-related goals of deterrence,

protection of the public, or rehabilitation. 18 U.S.C. §§ 3583(d)(1), 3553(a)(1),

(a)(2)(B)-(D). Second, the condition must be consistent with the Sentencing

Commission’s policy statements. § 3583(d)(3). And finally, the condition may

involve no greater deprivation of liberty than is reasonably necessary to serve the

goals of supervised release. § 3583(d)(2).” United States v. LaCoste, 821 F.3d

1187, 1190–91 (9th Cir. 2016) (internal quotation marks and case citations

omitted).

Garrett argues that three conditions of his supervised release pertaining to

his computer use—Conditions Nine, Ten, and Eleven (collectively, the “computer-

related conditions”)—are not reasonable. The record shows that Garrett used

email to communicate materially false information to investors. Thus, the

computer-related conditions are reasonably related to the sentencing-related goals

of deterrence and protection of the public.

The computer-related conditions are not akin to those we rejected in United

States v. Sales, 476 F.3d 732 (9th Cir. 2007) and United States v. Barsumyan, 517

2 F.3d 1154 (9th Cir. 2008) because they do not require Garrett to seek permission

from his probation officer before using a computer. And, they are not like those

we rejected in United States v. LaCoste, 821 F.3d at 1192 because they do not

prohibit him from using the internet without permission. Although Garrett argues

that Condition Eleven is too restrictive because it allows for monitoring of “any

and all activity on his computer,” we read this condition to be limited to internet

activity or use; “computer activities not related to the Internet are not to be

monitored.” See United States v. Quinzon, 643 F.3d 1266, 1272 (9th Cir. 2011).

During the sentencing hearing, the district court modified proposed

Condition Four from prohibiting Garrett from engaging in any business involving

the solicitation of funds to a prohibition from engaging in any business involving

the solicitation of investments. The written judgment, however, prohibits the

solicitation of funds. Garrett argues, and the government agrees, that the judgment

should be vacated so the district court can correct Condition Four to conform to the

oral pronouncement. Therefore, we vacate Condition Four and remand to the

district court so it may correct the condition to conform to the oral pronouncement.

See United States v. Jones, 696 F.3d 932, 938 (9th Cir. 2012) (internal quotation

marks and citations omitted) (“In cases where there is a direct conflict between an

unambiguous oral pronouncement of sentence and the written judgment . . . the

oral pronouncement, as correctly reported, must control.”).

3 AFFIRMED in part; VACATED in part; REMANDED.