United States v. Sims

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 6, 2025
• Docket: 24-7591
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 6 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-7591 D.C. No. Plaintiff - Appellee, 2:18-cr-00262-JLR-1 v. MEMORANDUM* JAMES ROBERT SIMS,

Defendant - Appellant.

Appeal from the United States District Court for the Western District of Washington James L. Robart, District Judge, Presiding

Submitted June 4, 2025** Seattle, Washington

Before: HAWKINS, GOULD, and BUMATAY, Circuit Judges.

James Robert Sims appeals the district court’s order revoking his supervised

release and imposing a sentence of three months’ imprisonment followed by seven

years of supervised release. We affirm.

* 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). Sims contends that the district court erred in finding he violated two special

conditions of supervised release prohibiting him from possessing or perusing

sexually explicit material. He argues that the conditions, as applied, violate the First

Amendment and conflict with United States v. Gnirke, 775 F.3d 1155 (9th Cir.

2015).

We review de novo the constitutionality of supervised-release conditions and

review the revocation of supervised release for abuse of discretion. United States v.

Ochoa, 932 F.3d 866, 868 (9th Cir. 2019); United States v. Green, 12 F.4th 970, 973

(9th Cir. 2021).

The First Amendment permits reasonable limitations on speech as conditions

of supervised release when those conditions are tailored to promote rehabilitation

and protect the public. See United States v. Rearden, 349 F.3d 608, 619–21 (9th Cir.

2003); United States v. Antelope, 395 F.3d 1128, 1142 (9th Cir. 2005). Such

conditions are constitutional so long as they do not restrict more liberty than

reasonably necessary. Gnirke, 775 F.3d at 1161–63.

Contrary to Sims’s argument, Gnirke does not prohibit the special conditions

at issue here. It expressly permits restrictions on “sexually stimulating depictions of

adult sexual conduct” that are “deemed inappropriate” by the probation officer, even

where the content is not strictly pornographic. Id. at 1166.

The district court did not abuse its discretion in concluding that Sims violated

2 24-7591 the conditions of his supervised release. The record reflects that Sims intentionally

and repeatedly accessed sexually explicit content on YouTube, including videos

with graphic sexual narratives and viewed at least one pornographic thumbnail

image. His exposure was not fleeting or inadvertent. Rather, the district court

reasonably found that Sims engaged in a sustained pattern of suggestive searches

and continued viewing behavior, which predictably influenced the content served by

YouTube’s algorithm. This conduct supports the conclusion that Sims acted

knowingly and intentionally. Green, 12 F.4th at 973.

We also reject Sims’s argument that viewing a thumbnail cannot constitute

“perusing” prohibited material. Sims failed to object to the meaning of “peruse”

below and offers no persuasive reason to adopt a narrower interpretation on appeal.

He has not shown plain error. See United States v. Liew, 856 F.3d 585, 596 (9th Cir.

2017).

Because the challenged conditions are constitutional as applied and the record

supports the district court’s findings, we affirm.

AFFIRMED.

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