United States v. 2011-02-15 | 10-30037 | USA V. JOSEPH ANTHONY | nonprecedential | memorandum…

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. Fed. R. App. P. 34(a)(2).
The Honorable Roger T. Benitez, United States District Judge for the***
Southern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
No. 10-30037
D.C. No. CR-08-126-BLG-RFC
vs. MEMORANDUM *
JOSEPH EMORY ANTHONY,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, District Judge, Presiding
Submitted January 10, 2011**
Seattle, Washington
Before: GRABER and M. SMITH, Circuit Judges, and BENITEZ, District***
Judge.
Defendant Joseph Emory Anthony appeals the 235-month custodial sentence
and conditions of supervised release imposed for Possession of Child Pornography,
FILED
FEB 15 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

2
in violation of 18 U.S.C. § 2252A(a)(5)(b). We have jurisdiction over the matter
pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We vacate two special
conditions of supervised release and remand for reimposition of conditions but
affirm the sentence in all other respects.
Anthony contends that the government breached the plea agreement by not
recommending a lower sentence. However, the district court rejected the plea
agreement at the outset of the sentencing hearing. Before counsel for the
government spoke, the court announced that the plea agreement was being rejected
and notified Anthony that the sentencing range contained in the plea agreement
was too lenient. Following the requirements of Federal Rule of Criminal
Procedure 11(c)(5), the court then gave Anthony the opportunity to withdraw his
guilty plea. When Anthony decided to persist in his guilty plea, the government
was no longer bound by the rejected plea agreement. See United States v.
Kuchinski, 469 F.3d 853, 858 (9th Cir. 2006). Therefore, there was no breach of
the plea agreement.
Anthony contends that his 235-month sentence is substantively
unreasonable. When reviewing a sentencing decision, we first review the
determination for procedural error, and then address the substantive reasonableness
of a sentence. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

-- 2 of 4 --

3
Here, the sentencing court began by resolving objections to the pre-sentence report
and correctly calculating the Sentencing Guidelines range. It then addressed the
facts of the case and explained the sentence selected based on the sentencing
factors listed in 18 U.S.C. § 3553(a). There was no procedural error.
The sentence was within the correctly calculated Sentencing Guidelines
range and below the statutory maximum sentence of twenty years. “[W]hen the
judge’s discretionary decision accords with the [Sentencing] Commission’s view
of the appropriate application of § 3553(a) in the mine run of cases, it is probable
that the sentence is reasonable.” Rita v. United States, 551 U.S. 338, 351 (2007);
see Carty, 520 F.3d at 994 (adopting this standard). In light of the totality of the
circumstances, given the sentencing court’s thorough explanation of the sentencing
factors and the danger Anthony posed to the community, we cannot say that the
sentence was substantively unreasonable. United States v. Blinkinsop, 606 F.3d
1110, 1116 (9th Cir. 2010).
Lastly, Anthony challenges as overbroad two special conditions of his
supervised release. Special Condition No. 7 prohibits possession and use of any
computer or electronic device that can provide access to the internet. The
government concedes that this condition is overbroad in light of United States v.
Riley, 576 F.3d 1046, 1050 (9th Cir. 2009), and we agree.

-- 3 of 4 --

4
Special Condition No. 15 is likewise overbroad and requires Anthony to
abstain from consuming or possessing alcohol and to avoid establishments where
alcohol is the primary item of sale. Alcohol played no part in the offense of
conviction and the nexus is slight between Anthony’s possession of alcohol and his
past criminal conduct. Given the facts in the record, Special Condition No. 15 is
not narrowly tailored and imposes a greater deprivation of liberty than is
reasonably necessary for the purposes of supervised release described in 18 U.S.C.
§ 3583(d). Riley, 576 F.3d at 1048.
Conditions of release VACATED and REMANDED for reimposition of
special conditions of release. AFFIRMED in all other respects.

-- 4 of 4 --