United States v. Raymond Thomas

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 11, 2023
• Docket: 22-50208
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION DEC 11 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50208

Plaintiff-Appellee, D.C. No. 2:22-cr-00013-PA-1

v. MEMORANDUM* RAYMOND LLEWELLEN THOMAS, AKA Paul Kimock, AKA Llew Lazarus, AKA Thomas Llew, AKA Thomas R Llwelleyn, AKA Llen R Thomas, AKA Llew Thomas, AKA Llew R Thomas, AKA Llewelleyn R Thomas, AKA Raymond L Thomas,

Defendant-Appellant.

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

Argued and Submitted November 15, 2023 Pasadena, California

Before: RAWLINSON, CLIFTON, and HURWITZ, Circuit Judges.

Raymond Thomas appeals his conviction and sentence for failing to give

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. notice of foreign travel in violation of 18 U.S.C. § 2250(b). We have jurisdiction

under 28 U.S.C. § 1291. We affirm the conviction and vacate the sentence in part.

1. Thomas contends that the district court abused its discretion in

admitting under Federal Rule of Evidence 404(b) evidence of his prior convictions

for knowingly failing to register as a sex offender. But any error in admitting this

evidence was harmless because “it is more probable than not that [any] error did

not materially affect the verdict.” United States v. Bailey, 696 F.3d 794, 803 (9th

Cir. 2012) (citation omitted). Thomas’ knowledge of the foreign travel notice

requirement was evidenced by his signature and initials on the 2020 and 2021

registration forms, which listed the requirement. See United States v. Elk Shoulder,

738 F.3d 948, 952 (9th Cir. 2013) (determining that there was notice under similar

circumstances); see also Supplemental Guidelines for Sex Offender Registration

and Notification, 76 Fed. Reg. 1630-01, 1638 (Jan. 11, 2011) (“The

acknowledgment forms signed by sex offenders regarding their registration

obligations are likely to be the most consistently available and definitive proof of

such knowledge.”).

2. Next, Thomas contends that the district court erred by failing to

address his mitigation arguments and failing to adequately provide reasons for

imposing a sentence at the high end of the Guidelines range. Reviewing for plain

2 error, see United States v. Torres-Giles, 80 F.4th 934, 938 (9th Cir. 2023), we

conclude that there was none. The record reflects that the district court listened to

Thomas’ arguments and considered the supporting evidence, but determined that a

within-Guidelines sentence of 27 months was warranted in light of Thomas’

repeated sexual offenses and evasive conduct. See United States v. Shouse, 755

F.3d 1104, 1109 (9th Cir. 2014) (providing the legal standard for sufficiency of a

district court’s explanation).

3. Finally, Thomas challenges the procedural adequacy of the district

court’s explanation for imposing Special Conditions 13 (adult pornography ban),

14 (residency restriction), and 16 (computer search condition), as well as the

substantive reasonableness of those conditions. Because Thomas did not object to

the imposition of Condition 14 or the procedural sufficiency of Conditions 13 and

16 before the district court, we review those matters for plain error.1 See United

States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009). We review for abuse of

discretion the substantive reasonableness of Conditions 13 and 16. See United

States v. Langley, 17 F.4th 1273, 1274 (9th Cir. 2021).

1 The district court’s oral notice that it was contemplating imposing special conditions was reasonable. See United States v. Wise, 391 F.3d 1027, 1033 (9th Cir. 2004). The district court offered the parties the option to object during sentencing or to hold the imposition of the conditions in abeyance for the filing of written objections. See id. 3 The district court’s explanation for imposing Conditions 13 and 16 was not

procedurally unreasonable under plain error review. The district court “need not

state at sentencing the reasons for imposing each condition of supervised release, if

it is apparent from the record.” United States v. Rudd, 662 F.3d 1257, 1260–61

(9th Cir. 2011) (citations and emphasis omitted). The record supports the district

court’s statement that the conditions were “reasonably related to the goals of

deterrence, protection of the public, [and Thomas’] rehabilitation.”

Conditions 13 and 16 are also substantively reasonable. Thomas argues that

Condition 13 is more restrictive than necessary because his predicate sex offenses

occurred more than 30 years ago and were not reasonably related to adult

pornography. But the record reflects that Thomas may have continued to struggle

with a “sexual deviance problem.” United States v. Ochoa, 932 F.3d 866, 871 (9th

Cir. 2019) (citation omitted). Additionally, Condition 13 is “readily susceptible”

to the limiting instruction applied in United States v. Gnirke, 775 F.3d 1155, 1166

(9th Cir. 2015). Thus, we construe the condition to apply “to any materials with

depictions of ‘sexually explicit conduct’ involving adults, defined as explicit

sexually stimulating depictions of adult sexual conduct that are deemed

inappropriate by [Thomas’] probation officer.” Id.

4 Nor does Condition 16 pose a greater deprivation of liberty than is

reasonably necessary. Generally, a district court does not abuse its discretion in

imposing a suspicionless computer search condition if there is “some nexus

between computer use and one of the goals articulated in” 18 U.S.C. § 3553(a).

United States v. Bare, 806 F.3d 1011, 1017 (9th Cir. 2015). Thomas’ personal

history, characteristics, and offense conduct establish a nexus between Condition

16 and the goals of deterrence and protecting the public.

We do, however, conclude that the district court plainly erred in imposing

Condition 14. The district court did not provide any explanation for the particular

distance of 2,000 feet, as required by Rudd. See 662 F.3d at 1263. And the

restriction substantially burdens Thomas’ liberty to live in urban areas. See United

States v. Collins, 684 F.3d 873, 890 (9th Cir. 2012). Thus, we vacate Condition 14

as procedurally unreasonable and remand to the district court to “provide the

appropriate analysis and support” for the imposed condition.2 Id. at 892.

CONVICTION AFFIRMED; SENTENCE VACATED AND REMANDED IN PART.

2 Because we vacate Condition 14 as procedurally unreasonable, we need not determine whether the condition is substantively unreasonable. See Rudd, 662 F.3d at 1264. 5