NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10294
Plaintiff-Appellee, D.C. No. 3:13-cr-00035-RCJ-WGC-1 v.
THOMAS NELSON LUPOLD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding
Submitted March 4, 2020** San Francisco, California
Before: SILER,*** WARDLAW, and M. SMITH, Circuit Judges.
Thomas Nelson Lupold appeals a sentence imposing a term of imprisonment
and supervised release with certain special conditions for violating a condition 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). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. supervision. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
We affirm in part, vacate in part, and remand.
1. The district court’s written judgment did not conflict with its oral imposition
of sentence. The district court stated at sentencing that Lupold would be subject to
“the same [conditions] as in the original judgment but also the same as in the last
revocation, including RRC [residential reentry center].” The special conditions
imposed in the written judgment included only those to which Lupold was subject
under the original judgment and second revocation sentence. Thus, Lupold and his
counsel “could have anticipated [those conditions] from the court’s statements at
the sentencing hearing.” United States v. Napier, 463 F.3d 1040, 1043 (9th Cir.
2006). To the extent the precise wording of the previously-imposed conditions
varied between the original judgment and the second revocation sentence, the
written judgment clarified any ambiguity in the oral pronouncement. Id. To the
extent Lupold argues that he and his counsel had no reason to expect the court to
impose special conditions, “imposition of . . . mandatory and standard conditions is
deemed to be implicit in an oral sentence imposing supervised release,” id., such
that the district court’s statements could only be read to refer to special
conditions. The court’s explicit reference to the RRC condition confirms that such
was the case here. Accordingly, Lupold was not denied the right to be present at
sentencing.
2 2. The sentence of 10 months’ imprisonment followed by 10 years of
supervised release was not substantively unreasonable. See United States v.
Overton, 573 F.3d 679, 700 (9th Cir. 2009). The 10-month sentence of
imprisonment was within the guidelines range, and “a correctly calculated
Guidelines sentence will normally not be found unreasonable on appeal.” United
States v. Carty, 520 F.3d 984, 988 (9th Cir. 2008) (en banc). The 10 years of
supervised release to follow likewise was not unreasonable when it and the time
Lupold previously served on supervision together amount to less than the 20-year
term he was to serve under his initial sentence. Considering the totality of the
circumstances, a high-end guidelines sentence was not unreasonable where
Lupold’s supervised release had previously twice been revoked for violating
conditions of supervised release, his previous sentences of four and eight months
did not deter him from further violations, and his probation officer expressed
significant doubt as to Lupold’s ability and willingness to comply with his
supervised release conditions. Those reasons sufficiently cover the § 3553 factors
enumerated in 18 U.S.C. § 3583(e), and “[w]e may not reverse just because we
think a different sentence is appropriate.” Id. at 993.
3. Lupold also challenges several special conditions of his supervised release.
Although he was subject to these same conditions during previous terms of
supervision and did not appeal them then, he did not waive any challenge to those
3 conditions. Once a term of supervision is revoked, “it has been annulled, and the
conditions of that term do not remain in effect.” United States v. Wing, 682 F.3d
861, 868 (9th Cir. 2012). Lupold’s failure to challenge conditions that no longer
remain in effect has no bearing on conditions imposed under a new sentence after a
subsequent revocation. Thus, because Lupold did not raise these arguments before
the district court, this case is one involving forfeiture, not waiver, and we conduct
plain error review. United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019)
(en banc). Lupold challenges the legality of his conditions, which is not a proper
ground for the district court to modify his sentence, so remand on that basis is not
warranted. United States v. Gross, 307 F.3d 1043, 1044 (9th Cir. 2002).
We conclude the district court plainly erred in imposing four conditions.
The minor prohibition condition substantially infringes Lupold’s fundamental right
to associate with his minor child and “the district court did not comply with the
enhanced procedural requirement applicable to [such provisions].” United States
v. Wolf Child, 699 F.3d 1082, 1096 (9th Cir. 2012). The record does not reveal
that Lupold poses a risk to his own child. Although the court initially imposed this
restriction in 2017, it did not incorporate any findings from that hearing that would
satisfy the requirements of Wolf Child. Accordingly, a limited remand, “to allow
the district court to revise” the minor prohibition condition or make the requisite
findings is appropriate. Id.
4 The pornography prohibition condition is not overbroad, United States v.
Daniels, 541 F.3d 915, 927 (9th Cir. 2008), but it is vague as to the phrase “that
would compromise your sex offense-specific treatment.” Because people “of
common intelligence must necessarily guess at its meaning” and may “differ as to
its application,” United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018), we
vacate and remand to the district court to modify the condition.
The computer search and monitoring conditions are not vague or overbroad
as to the devices to which those conditions apply. Any concern about vagueness or
overbreadth is obviated by the limitation to searches only “when reasonable
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10294
Plaintiff-Appellee, D.C. No. 3:13-cr-00035-RCJ-WGC-1 v.
THOMAS NELSON LUPOLD, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding
Submitted March 4, 2020** San Francisco, California
Before: SILER,*** WARDLAW, and M. SMITH, Circuit Judges.
Thomas Nelson Lupold appeals a sentence imposing a term of imprisonment
and supervised release with certain special conditions for violating a condition 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). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. supervision. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
We affirm in part, vacate in part, and remand.
1. The district court’s written judgment did not conflict with its oral imposition
of sentence. The district court stated at sentencing that Lupold would be subject to
“the same [conditions] as in the original judgment but also the same as in the last
revocation, including RRC [residential reentry center].” The special conditions
imposed in the written judgment included only those to which Lupold was subject
under the original judgment and second revocation sentence. Thus, Lupold and his
counsel “could have anticipated [those conditions] from the court’s statements at
the sentencing hearing.” United States v. Napier, 463 F.3d 1040, 1043 (9th Cir.
2006). To the extent the precise wording of the previously-imposed conditions
varied between the original judgment and the second revocation sentence, the
written judgment clarified any ambiguity in the oral pronouncement. Id. To the
extent Lupold argues that he and his counsel had no reason to expect the court to
impose special conditions, “imposition of . . . mandatory and standard conditions is
deemed to be implicit in an oral sentence imposing supervised release,” id., such
that the district court’s statements could only be read to refer to special
conditions. The court’s explicit reference to the RRC condition confirms that such
was the case here. Accordingly, Lupold was not denied the right to be present at
sentencing.
2 2. The sentence of 10 months’ imprisonment followed by 10 years of
supervised release was not substantively unreasonable. See United States v.
Overton, 573 F.3d 679, 700 (9th Cir. 2009). The 10-month sentence of
imprisonment was within the guidelines range, and “a correctly calculated
Guidelines sentence will normally not be found unreasonable on appeal.” United
States v. Carty, 520 F.3d 984, 988 (9th Cir. 2008) (en banc). The 10 years of
supervised release to follow likewise was not unreasonable when it and the time
Lupold previously served on supervision together amount to less than the 20-year
term he was to serve under his initial sentence. Considering the totality of the
circumstances, a high-end guidelines sentence was not unreasonable where
Lupold’s supervised release had previously twice been revoked for violating
conditions of supervised release, his previous sentences of four and eight months
did not deter him from further violations, and his probation officer expressed
significant doubt as to Lupold’s ability and willingness to comply with his
supervised release conditions. Those reasons sufficiently cover the § 3553 factors
enumerated in 18 U.S.C. § 3583(e), and “[w]e may not reverse just because we
think a different sentence is appropriate.” Id. at 993.
3. Lupold also challenges several special conditions of his supervised release.
Although he was subject to these same conditions during previous terms of
supervision and did not appeal them then, he did not waive any challenge to those
3 conditions. Once a term of supervision is revoked, “it has been annulled, and the
conditions of that term do not remain in effect.” United States v. Wing, 682 F.3d
861, 868 (9th Cir. 2012). Lupold’s failure to challenge conditions that no longer
remain in effect has no bearing on conditions imposed under a new sentence after a
subsequent revocation. Thus, because Lupold did not raise these arguments before
the district court, this case is one involving forfeiture, not waiver, and we conduct
plain error review. United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019)
(en banc). Lupold challenges the legality of his conditions, which is not a proper
ground for the district court to modify his sentence, so remand on that basis is not
warranted. United States v. Gross, 307 F.3d 1043, 1044 (9th Cir. 2002).
We conclude the district court plainly erred in imposing four conditions.
The minor prohibition condition substantially infringes Lupold’s fundamental right
to associate with his minor child and “the district court did not comply with the
enhanced procedural requirement applicable to [such provisions].” United States
v. Wolf Child, 699 F.3d 1082, 1096 (9th Cir. 2012). The record does not reveal
that Lupold poses a risk to his own child. Although the court initially imposed this
restriction in 2017, it did not incorporate any findings from that hearing that would
satisfy the requirements of Wolf Child. Accordingly, a limited remand, “to allow
the district court to revise” the minor prohibition condition or make the requisite
findings is appropriate. Id.
4 The pornography prohibition condition is not overbroad, United States v.
Daniels, 541 F.3d 915, 927 (9th Cir. 2008), but it is vague as to the phrase “that
would compromise your sex offense-specific treatment.” Because people “of
common intelligence must necessarily guess at its meaning” and may “differ as to
its application,” United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018), we
vacate and remand to the district court to modify the condition.
The computer search and monitoring conditions are not vague or overbroad
as to the devices to which those conditions apply. Any concern about vagueness or
overbreadth is obviated by the limitation to searches only “when reasonable
suspicion exists that there is a violation of a condition of supervision and that the
computer or device contains evidence of this violation.” To the extent any
particular computing device is not capable of storing or accessing evidence of
violations, no reasonable suspicion would exist to search them. Similarly, to be
monitored, those devices would require the capacity to have monitoring software
installed.
However, the computer search condition is vague and overbroad in that it
requires Lupold to warn others who use “devices capable of accessing the Internet”
that those devices may be subject to search. It is not clear whether the condition
applies to devices, like smart thermostats, refrigerators, or faucets, that are capable
of and do access the internet yet do not have the capacity to access prohibited
5 materials. In addition, the condition is overbroad to the extent it requires Lupold to
warn others that those types of devices are subject to search. Similarly, the
computer monitoring condition is overbroad in that it requires Lupold to allow
installation of monitoring software on any computer he uses, even if he does not
own it and has no authority to permit or deny such installation. Thus, we vacate
the computer search and monitoring conditions and remand to the district court to
modify them in accordance with this memorandum.
We conclude that the district court did not plainly err in imposing the search
and seizure, risk notification, and polygraph testing conditions. See id. at 1164;
United States v. Cervantes, 859 F.3d 1175, 1184 (9th Cir. 2017); see also United
States v. Hovious, 787 F. App’x 377, 381 (9th Cir. 2019); United States v. Witzke,
748 F. App’x 138, 140 (9th Cir. 2019).
We AFFIRM the sentence imposed and the search and seizure, risk
notification, and polygraph testing conditions. We VACATE the minor
association, pornography prohibition, and computer search and monitoring
conditions and REMAND to the district court.