United States v. Todd Sherman

Opinion

FILED NOT FOR PUBLICATION JAN 28 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50031

Plaintiff-Appellee, DC No. CR 16-1784 GPC

v. MEMORANDUM* TODD MICHAEL SHERMAN,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Gonzalo P. Curiel, District Judge, Presiding

Argued and Submitted January 11, 2019 Pasadena, California

Before: TASHIMA and WATFORD, Circuit Judges, and ROBRENO,** District Judge.

Defendant-Appellant Todd Sherman pleaded guilty to distribution of images

of minors engaged in sexually explicit conduct in violation of 18 U.S.C. §

2252(a)(2). On appeal, Sherman challenges one of the conditions of supervised

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Eduardo C. Robreno, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. release that will be imposed after his term of imprisonment ends. Condition 9

requires that Sherman:

Not possess or view any materials such as videos, magazines, photographs, computer images or other matter that depicts “sexually explicit conduct” involving children as defined by 18 U.S.C. § 2256(2); and/or “actual sexually explicit conduct” involving adults as defined by 18 USC 2257(h)(1), not patronize any place where such materials or entertainment are the primary material or entertainment available.

We have jurisdiction under 28 U.S.C. §§ 1291 and 3742. Sherman properly

objected to Condition 9, so we review the district court’s imposition of the

condition for an abuse of discretion. See United States v. Gnirke, 775 F.3d 1155,

1159 (9th Cir. 2015). We affirm.

1. The district court did not commit procedural error in imposing

Condition 9. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en

banc) (directing that “we first consider whether the district court committed

significant procedural error”). The district court explained that Condition 9 was

warranted because Sherman admitted that his desensitization to adult pornography

led him to seek out more and more extreme versions of pornography, including

child pornography. Therefore, imposing Condition 9 was reasonably necessary in

light of “the nature and circumstances of the offense and the history and

2 characteristics of the defendant,” to “protect the public from further crimes of the

defendant.” See 18 U.S.C. § 3553(a)(1), (2); 18 U.S.C. § 3583(d)(1).

2. Condition 9 is not substantively unreasonable under Gnirke.

Conditions are substantively reasonable “if they are reasonably related to the goal

of deterrence, protection of the public, or rehabilitation of the offender, and involve

no greater deprivation of liberty than is reasonably necessary for the purposes of

supervised release.” United States v. Daniels, 541 F.3d 915, 924 (9th Cir. 2008)

(quoting United States v. Rearden, 349 F.3d608, 618 (9th Cir. 2003)). Prohibiting

Sherman from viewing or possessing materials depicting adult, lascivious full-

frontal nudity (or patronizing any place where such materials or entertainment are

the primary material or entertainment available) is reasonably related to the goal of

protecting the public. Such a restriction helps prevent further desensitization to

adult pornography, which could lead Sherman to seek out child pornography again.

Condition 9 is also significantly narrower than the condition in Gnirke and

does not deprive Sherman of more liberty than is reasonably necessary. Unlike the

condition in Gnirke that prohibited the defendant from possessing or viewing both

“actual” and “simulated” sexually explicit conduct involving adults, 775 F.3d at

1163, the challenged supervised release condition here only covers “actual”

sexually explicit conduct involving adults and does not incorporate the entirety of

3 18 U.S.C. § 2256(2). Therefore, Condition 9 is substantively reasonable because it

does not reach beyond adult pornography to encompass portrayals of sex in art,

literature, and scientific works, as the original condition in Gnirke did. See 775

F.3d at 1165.

AFFIRMED.