United States v. Kessler

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 9 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

No. 23-4353 UNITED STATES OF AMERICA, D.C. No. 2:06-cr-00310-KJM-1 Plaintiff - Appellee,

v. MEMORANDUM* JUSTIN EVERETT KESSLER,

Defendant - Appellant.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, District Judge, Presiding

Argued and Submitted May 23, 2025 San Francisco, California

Before: BERZON, FRIEDLAND, and MENDOZA, Circuit Judges.

Defendant Justin Everett Kessler pled guilty to Receipt of Visual Depictions

of Minors Engaged in Sexually Explicit Conduct in violation of 18 U.S.C.

§ 2252(a)(2). He was sentenced to a term of 188 months in prison and 120 months

of supervised release. Three years into his supervised release term, Kessler’s

supervision was revoked. The district court sentenced Kessler to 24 months

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

1 imprisonment and a life term of supervised release and imposed several new

supervised release conditions. Kessler challenges the term of supervised release

and two special conditions of his supervision. Kessler and the Government also

ask the Court to vacate Special Condition 11—the loitering condition—and remand

to allow the district court to conform its written judgment to its oral

pronouncement. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. §

3742, we affirm in part, and reverse, vacate, and remand in part.

1. Kessler challenges the life term of supervised release as both procedurally

and substantively unreasonable. Because Kessler failed to object to the procedural

correctness of his sentence below, we review for plain error whether the district

court provided an adequate statement of reasons. See United States v. Miqbel, 444

F.3d 1173, 1176 (9th Cir. 2006). The district court expressly considered

deterrence, the protection of the public, and Kessler’s long history of sexual abuse.

Although the district court’s explanation for Kessler’s within-guidelines sentence

was brief, it was not plain error. See U.S. Sent’g Guidelines Manual § 5D1.2(b)(2)

(U.S. Sent’g Comm’n 2022); United States v. Avendano-Soto, 116 F.4th 1063,

1068–69 (9th Cir. 2024) (recognizing that this circuit’s caselaw does not require

“the district court [to] explain its reasoning in more detail,” when fashioning a

within-guidelines sentence).

2 Nor did the district court abuse its discretion by applying a substantively

unreasonable sentence. Avendano-Soto, 116 F.4th at 1066 (“Even in the absence of

an objection, we review the substantive reasonableness of a sentence for abuse of

discretion.”). “The touchstone of ‘reasonableness’ is whether the record as a whole

reflects rational and meaningful consideration of the factors enumerated in

18 U.S.C. § 3553(a).” United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir.

2012) (en banc) (quoting United States v. Tomko, 562 F.3d 558, 568 (3d Cir. 2009)

(en banc)). Here, the district court imposed a within-guidelines sentence after

considering Kessler’s filings and probation’s dispositional report, as well as

Kessler’s offense conduct and supervised release violations. Viewing the totality

of the circumstances, the district court’s imposition of a life term of supervised

release was not substantively unreasonable.

2. Kessler challenges Special Condition 6—prohibiting Kessler from

“open[ing] additional lines of credit without the approval of the probation officer”

—on the grounds that it has no reasonable relationship to his offense of conviction

or his supervised release violations. We review conditions of supervised release

for abuse of discretion. United States v. Daniels, 541 F.3d 915, 924 (9th Cir.

2008). To be permissible, the condition must be “reasonably related to the goal of

deterrence, protection of the public, or the rehabilitation of the offender” and must

not impose a “‘greater deprivation of liberty than is reasonably necessary for the

3 purposes’ of supervised release.” United States v. T.M., 330 F.3d 1235, 1240 (9th

Cir. 2003) (quoting 18 U.S.C. § 3583(d)(2)). The credit line condition satisfies

neither requirement. Contrary to the Government’s contentions, that condition is

not reasonably related to deterring Kessler from purchasing a device to view child

pornography or protecting the public from him. And the condition imposes a

“greater deprivation of liberty than is reasonably necessary,” id. (quoting 18 U.S.C.

§ 3583(d)(2)), because Kessler is subject to several other conditions that will deter

him from purchasing or misusing such devices—including conditions requiring

that he provide financial information upon request and submit to monitoring of

electronic devices. See United States v. Riley, 576 F.3d 1046, 1049 & n.3 (9th Cir.

2009). The district court therefore abused its discretion in imposing Special

Condition 6.

3. Kessler challenges Special Condition 11 on the grounds that it is

unconstitutionally vague and overbroad. The condition provides: “You must not

loiter in any public restroom.” A claim may be unreviewable when the defendant

has “(1) invited the error and (2) relinquished a known right.” United States v.

Magdaleno, 43 F.4th 1215, 1219–20 (9th Cir. 2022). Kessler invited the alleged

error by proposing the “loiter” language that he now challenges. And Kessler

relinquished any right to more specific terminology by proposing the term “loiter”

4 on the grounds that it has a legal definition and is “understandable.” Thus,

Kessler’s challenge to Special Condition 11 is unreviewable.

4. We remand Special Condition 11, however, for the district court to

conform the written judgment to the court’s oral pronouncement. United States v.

Montoya, 82 F.4th 640, 648 (9th Cir. 2023) (en banc) (“[I]f there is a conflict

between the sentence orally imposed and written judgment, the oral

pronouncement, as correctly reported, controls.” (citation omitted)).

AFFIRMED in part and REVERSED, VACATED, and REMANDED in

part.