United States v. Raymond Devore

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 7, 2022
• Docket: 21-30016
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED JUN 7 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 21-30016

Plaintiff-Appellee, D.C. No. 2:15-cr-00160-TSZ-1 v.

RAYMOND EARL DEVORE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Submitted May 17, 2022** Seattle, Washington

Before: WARDLAW, GOULD, and BENNETT, Circuit Judges.

Appellant Raymond Devore is a registered sex offender who committed

additional offenses while being supervised at a state-run facility. Following a

bench trial, the district court found Appellant guilty of one count each of

distribution, receipt, and attempted production of child pornography, one count of

* 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). enticement of a minor, and two counts of possession of child pornography. At the

initial sentencing hearing, the district court applied a multiple-conviction

enhancement based on Devore’s prior state offenses. The enhancement required a

minimum thirty-five year term of imprisonment. The district court noted that

thirty-five years was a long time, but reluctantly imposed that term.

On appeal, we reversed the district court’s holding that Appellant’s prior

state court convictions included an element of production of child pornography.

Because the prior convictions did not include an element of production of child

pornography as the district court had originally believed, we remanded for

resentencing.

At resentencing, the parties agreed that a statutory sentencing range of

fifteen to thirty years applied under the Sentencing Guidelines. Devore requested a

fifteen-year term of imprisonment, but the government recommended a thirty-year

term. The district court agreed that the applicable Sentencing Guideline range was

fifteen to thirty years, and sentenced Appellant to a term of twenty years followed

by a lifetime of supervised release. In addition to the standard conditions, the

district court imposed sixteen Special Conditions of Supervised Release (“Special

Conditions”). Appellant challenges the district court’s imposition of Special

Conditions 7 and 9.

2 Because Appellant did not object to either of the Special Conditions before

the district court, we review for plain error. See United States v. Daniels, 541 F.3d

915, 927 (9th Cir. 2008). Under the plain error standard, relief is warranted if there

has been: (1) error, (2) that was plain, (3) that affected substantial rights, and (4)

that seriously affected the fairness, integrity, or public reputation of the judicial

proceedings. See United States v. Olano, 507 U.S. 725, 732 (1993).

As to Special Condition 7, Appellant argues that the district court committed

procedural error because it imposed the condition without explanation and

committed substantive error because the condition is not reasonably related to the

goals of supervised release, does not bear a reasonable relation to the crime

Appellant committed, and deprives him of more liberty than is reasonably

necessary. Appellant’s arguments fail under plain error review.

Devore’s substantive challenge to Special Condition 7, which prohibits him

from viewing sexually explicit material featuring adults as well as children, fails

because the condition is “reasonably related” to his offense of conviction, his

history and characteristics, and the purposes of supervised release. See United

States v. Gnirke, 775 F.3d 1155, 1161 (9th Cir. 2015). In particular, the record

shows that the district court could reasonably have been concerned about Devore’s

consumption of sexual content featuring adults leading to additional offenses

involving children, as at trial he argued that he believed his minor victims were of

3 age. See United States v. Rearden, 349 F.3d 608, 619–20 (9th Cir. 2003)

(upholding a nearly identical condition under similar circumstances); United States

v. Daniels, 541 F.3d 915, 927–28 (9th Cir. 2008) (same).

Devore’s procedural challenge to Special Condition 7 fails because: (1) the

record, specifically the information about Devore’s criminal history, provides

strong support for imposing a condition prohibiting him from viewing sexually

explicit content, and (2) we have previously held that access to sexual content

featuring adults is not such a “significant liberty interest” that a sentencing court

must explicitly address its reasons for imposing conditions infringing on that right.

See Gnirke, 775 F.3d at 1160 (cleaned up).

As to Appellant’s challenge to Special Condition 9, in light of our recent

decision in United States v. Wells, 29 F.4th 580 (9th Cir. 2022), the parties agree

that we should vacate. We hold that remand is proper and, in light of Wells, we

vacate and remand Special Condition 9 for the district court to clarify which

“electronic devices” are prohibited under Special Condition 9.

Appellant’s final challenge is that the district court’s written Statement of

Reasons from the resentencing hearing includes a clerical error. In the Statement of

Reasons, the district court wrote that the applicable Sentencing Guidelines range

was “Life.” However, at the resentencing hearing, the court determined that

Appellant had a Guidelines range of fifteen to thirty years. This error appears to be

4 purely clerical as the district court’s calculation and oral pronouncement of

Appellant’s sentence were proper. None of Appellant’s rights were affected.

However, because we remand for further consideration of Special Condition 9, we

also remand for the purpose of correcting the harmless clerical error.

AFFIRMED IN PART, VACATED AND REMANDED IN PART