United States v. Ricky Johnston

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 16 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10436

Plaintiff-Appellee, D.C. No. 2:14-cr-00366-APG-PAL-1 v.

RICKY DAMIAN JOHNSTON, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted September 14, 2020** San Francisco, California

Before: BADE and BUMATAY, Circuit Judges, and MÁRQUEZ,*** District Judge.

Ricky Johnston appeals the district court’s amended judgment imposing

special condition 9, which restricts him from going to or remaining at “any place

* 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). *** The Honorable Rosemary Márquez, United States District Judge for the District of Arizona, sitting by designation. primarily used by children” as a condition of his supervised release. We generally

review conditions of supervised release for abuse of discretion, but we review de

novo whether any such condition violates the Constitution. United States v. Watson,

582 F.3d 974, 981 (9th Cir. 2009). We affirm.

After pleading guilty to one count of receipt of child pornography, Johnston

was sentenced to 144 months’ imprisonment and supervised release for life. After a

remand from this court, the district court modified the language on special condition

9 and imposed the following:

You must not go to, or remain at, any place primarily used by children under the age of 18, unless you have the express prior permission of your probation officer. Examples of such prohibited places include parks, schools, playgrounds, and childcare facilities.

Johnston challenges the constitutionality of special condition 9.

1. A condition of supervised release is void for vagueness when the standard

for determining whether conduct is illegal is itself “so vague that men of common

intelligence must necessarily guess at its meaning and differ as to its application.”

United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018). It is not enough to

show that it is difficult to determine whether the condition is violated; there must be

some level of “indeterminacy” or “subjectiv[ity]” in what is even prohibited. United

States v. Williams, 553 U.S. 285, 306 (2008).

Here, the special condition is “sufficiently clear” to provide Johnston notice

of what types of places he is forbidden to visit. Cf. United States v. Guagliardo, 278

2 F.3d 868, 872 (9th Cir. 2002) (per curiam) (finding condition that defendant not

reside in “close proximity” to places frequented by children vague because “close

proximity” was undefined). The phrase “primarily used by” children might be

“marked by flexibility and reasonable breadth, rather than meticulous specificity,”

yet it is still “clear what the [condition] as a whole prohibits.” Grayned v. City of

Rockford, 408 U.S. 104, 110 (1972) (citation omitted). Indeed, this court has

repeatedly upheld substantively similar conditions against vagueness and

overbreadth challenges. See, e.g., United States v. Blinkinsop, 606 F.3d 1110, 1119–

20 (9th Cir. 2010). The condition’s examples of prohibited places, including “parks,

schools, playgrounds, and childcare facilities,” provide further clarifying parameters

to its meaning. Cf. Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 162

(2012) (explaining how “examples enumerated in [statutory] text” can “illustrat[e]”

the meaning of an otherwise broad statutory term).

2. A condition is overbroad if it “restrict[s] more of the defendant’s liberty

than necessary.” United States v. Wolf Child, 699 F.3d 1082, 1090–91 (9th Cir.

2012). The district court did not err in determining the condition was necessary to

protect the public and deter Johnston from committing crimes in the future and that

it involved “no greater deprivation of liberty than is reasonably necessary.” See 18

U.S.C. § 3583(d)(2). The record shows Johnston’s sexual interest in children and

his history of acting on that interest. Given this history, we agree that the special

3 condition is reasonably related to the goals of deterrence, rehabilitation, and

protection of the public. See United States v. Daniels, 541 F.3d 915, 928 (9th Cir.

2008) (upholding even more restrictive release condition against an overbreadth

challenge where “sheer volume” of child pornography collection suggested “a sexual

interest in children”).

3. Special condition 9 also does not unduly burden Johnston’s fundamental

right to familial association. We will not strike down a condition based on

speculation. Johnston has not identified any underage family members with whom

he would be prevented from associating under the special condition. Accordingly,

Johnston’s case is distinguishable from the three cases upon which he relies. See

Blinkinsop, 606 F.3d at 1121 (two children); Wolf Child, 699 F.3d at 1089 n.1 (three

children); United States v. Carlson, 395 F. App’x 413, 416 (9th Cir. 2010)

(unpublished) (several young nieces and nephews). And even if he did (or will) have

family members under the age of 18, Johnston can seek permission from his

probation officer to attend an event involving underage family members. See

Blinkinsop, 606 F.3d at 1121. Therefore, special condition 9 does not violate

Johnston’s fundamental right to familial association.

AFFIRMED.