United States v. Ronald Tsosie

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2020
• Docket: 19-10090
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10090

Plaintiff-Appellee, D.C. No. 3:94-cr-00031-DGC-1 v.

RONALD LEE TSOSIE, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Submitted February 5, 2020** Phoenix, Arizona

Before: GRABER, HURWITZ, and MILLER, Circuit Judges.

While on supervised release from a federal conviction, Ronald Tsosie was

convicted in Arizona state court of attempted sexual assault. After Tsosie completed

a four-year state sentence, the district court revoked supervised release and imposed

a 27-month term of imprisonment to be followed by 27 months of supervised release.

* 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). See 18 U.S.C. § 3583(e). Tsosie challenges that sentence and argues that the district

court plainly erred in imposing a special condition of supervised release. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.

1. Because Tsosie did not argue below that the district court “fail[ed] to

adequately address all of [his] arguments,” we review the sentence for plain error,

United States v. Rangel, 697 F.3d 795, 805 (9th Cir. 2012), and find none. Tsosie

has not “show[n] ‘a reasonable probability that he would have received a different

sentence’” had the district court explicitly considered whether he should receive a

reduced sentence because he lost the opportunity to serve his state and federal terms

concurrently. United States v. Hanson, 936 F.3d 876, 884 (9th Cir. 2019) (quoting

United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008)). The district court

emphasized that its sentence served to protect the public from any further crimes

Tsosie might commit. See 18 U.S.C. § 3553(a)(2)(C). It is therefore “highly

uncertain whether [Tsosie] would have received a lesser sentence.” United States v.

Christensen, 732 F.3d 1094, 1106 (9th Cir. 2013).

2. Special Condition 9 of supervised release authorizes the search of

Tsosie’s electronic devices in the lawful discharge of a probation officer’s

supervisory functions. Tsosie did not object to this condition below, but now argues

that the district court plainly erred by failing to “make[] a factual finding establishing

some nexus between [electronic device] use and one of the goals” of supervised

2 release. United States v. Bare, 806 F.3d 1011, 1017 (9th Cir. 2015). The district

court did not commit plain error in adopting the probation officer’s justification for

the condition and finding it reasonably related to Tsosie’s rehabilitation. See United

States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003) (“The supervised release

conditions need not relate to the offense for which [the defendant] was convicted as

long as they satisfy any of the conditions set forth [in 18 U.S.C. §§ 3583(d)(1) and

3553(a)].”). Another special condition, not challenged on appeal, prohibits Tsosie

from possessing sexually explicit material. Special Condition 9 works in furtherance

of that condition.

AFFIRMED.