United States of America v. Enrique Cesar Wong

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ENRIQUE CESAR WONG,
Defendant-Appellant.
No. 16-50000
D.C. No.
5:14-cr-00039-VAP-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Submitted April 4, 2017**
Pasadena, California
Before: PLAGER,*** BEA, and OWENS, Circuit Judges.
Enrique Cesar Wong appeals from the district court’s order revoking his term
of supervised release and sentencing him to five years’ imprisonment followed by a
* 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 S. Jay Plager, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
FILED
APR 18 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 6 --

2
lifetime term of supervised release. Wong also appeals two conditions of his term of
supervised release: one which requires him to participate in a “computer monitoring
program” administered by the U.S. Probation Office (“USPO”),1 and another which
forbids him from “view[ing] or possess[ing] any materials . . . depicting or
describing,” inter alia, “sexually explicit conduct as defined at 18[] U.S.C. [§]
2256(2).” We review a sentence following the revocation of a defendant’s
supervised release for “reasonableness,” United States v. Simtob, 485 F.3d 1058,
1061 (9th Cir. 2007), and we review the conditions of a defendant’s term of
supervised release for abuse of discretion, United States v. Napulou, 593 F.3d 1041,
1044 (9th Cir. 2010). Because the parties are familiar with the facts of this case, we
do not recount them here.
We affirm Wong’s five-year term of imprisonment, his lifetime term of
supervised release, and the condition of his supervised release which requires him
to participate in the USPO’s computer monitoring program. We vacate the condition
of Wong’s supervised release which prohibits him from viewing or possessing
depictions or descriptions of “sexually explicit conduct” within the meaning of
§ 2256(2), and we remand with instructions to reimpose that condition in a form that
1 This program requires a participant, inter alia, to allow the USPO to install
“computer monitoring software” on his “computer system[s],” to “disclose to [his]
probation officer all accounts on any social networking site,” and to “provide user
names and passwords . . . for all devices[] and web-based email accounts to [his]
probation officer.”

-- 2 of 6 --

3
complies with United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015).
1. The district court committed neither procedural nor substantive error in
imposing Wong’s sentence. First, the district court did not commit procedural error
by relying on improper statutory factors or by failing adequately to explain the
reasons for Wong’s sentence. The district court expressly considered the “nature and
circumstances of [Wong’s] offense,” the “need for deterrence,” and the “need to
protect the public from this defendant,” all of which are permissible factors for a
court to consider when sentencing a defendant following the revocation of a term of
supervised release. See 18 U.S.C. § 3583(e). Though the district court also cited the
“seriousness” of Wong’s “conduct” and “the need for the sentence to reflect that,” it
did so only in relation to other, permissible sentencing factors, such as the “need to
protect the public from [Wong].” See Simtob, 485 F.3d at 1062 (“The seriousness of
the offense underlying the revocation, though not a focal point of the inquiry, may
be considered to a lesser degree as part of the criminal history of the violator.”).
Nor are we persuaded by Wong’s remaining claims of procedural error.
Wong’s letters from his friends and family, which generally characterized Wong as
“someone who repeatedly sacrifice[s] himself for [others],” were not sufficiently
“specific” or “tethered to a relevant [statutory] factor” to require express discussion
by the district court. United States v. Carty, 520 F.3d 984, 992–93 (9th Cir. 2008).
And although the USPO’s June 18, 2014 petition incorrectly stated the age of the

-- 3 of 6 --

4
victim of one of the crimes underlying the revocation of Wong’s supervised
release—the petition stated that the victim was fourteen years old when in fact she
was sixteen—Wong’s culpability under the applicable statute of conviction would
have been the same even if the victim had been fourteen. See Cal. Pen. Code § 288.2
(prohibiting “knowingly . . . send[ing] . . . harmful matter” to a “minor”); Cal. Fam.
Code § 6500 (defining a “minor” as “any individual who is under 18 years of age”).
Further, nowhere in the record did the district court cite the victim’s age as an
aggravating circumstance or even a reason for imposing Wong’s revocation
sentence. Thus, Wong’s sentence was not “based on [a] clearly erroneous fact[].”
United States v. Collins, 684 F.3d 873, 888 (9th Cir. 2012).
Finally, the district court did not commit substantive error in imposing
Wong’s sentence. Wong committed the conduct underlying his arrest in June 2014
while released on bail pending sentencing proceedings in state court, and while on
electronic monitoring by the USPO pending his revocation-of-supervised-release
proceedings in district court. Thus, Wong’s above-guidelines sentence was proper
to “sanction [him] for his breach of [the court’s] trust[.]” United States v. Miqbel,
444 F.3d 1173, 1182 (9th Cir. 2006) (internal quotation marks omitted). Moreover,
the conduct underlying Wong’s February and June 2014 arrests, both of which
involved unlawful sexual activity with minors, supports the district court’s
conclusion that a longer term of imprisonment and supervised release was justified

-- 4 of 6 --

5
to “deter[] this defendant,” to “send a message of deterrence to others,” and to
“protect the public from this defendant.” See 18 U.S.C. § 3583(e).
2. Nor did the district court abuse its discretion by imposing a condition
of supervised release that requires Wong to participate in the USPO’s computer
monitoring program. The condition does not authorize the USPO to monitor Wong’s
offline computer activity, as Wong contends. See United States v. Quinzon, 643 F.3d
1266, 1272 (9th Cir. 2011) (holding that because a defendant’s condition required
him to “pay the cost of the computer monitoring, in an amount not to exceed $30 per
month per device connected to the internet,” the condition impliedly authorized only
surveillance of online activity (emphasis in original) (internal quotation marks
omitted)). Nor does the condition “force a waiver of [attorney-client] privilege,”
because according to the “Computer Monitoring Program Rules and Participation
Agreement,” all Wong or his attorney must do to ensure that a privileged email will
not be read by Wong’s probation officer is include the phrase “Legal Email” in the
subject line of that email.
3. The district court abused its discretion by imposing a condition of
supervised release that prohibits Wong from “view[ing] or possess[ing] any
materials . . . depicting or describing . . . sexually explicit conduct as defined at 18[]
U.S.C. [§] 2256(2).” In United States v. Gnirke, we held that a condition of
supervised release which likewise incorporated § 2256(2)’s definition of “sexually

-- 5 of 6 --

6
explicit conduct” was invalid because it “involve[d] [a] greater deprivation of liberty
than [was] reasonably necessary” to achieve the purposes of supervised release. 775
F.3d at 1160. To the extent that Wong’s condition incorporates § 2256(2)’s
definition of “sexually explicit conduct,” it violates our holding in Gnirke.
The government concedes that the condition violates Gnirke but nonetheless
asks the Court to affirm the condition with an “understanding” that it will be applied
in a manner that is consistent with Gnirke. But the government cites no authority for
the proposition that this Court may affirm a facially invalid condition of supervised
release with the “understanding” that it will be applied in a manner that is consistent
with our precedent, and we are aware of none. Thus, we vacate Wong’s condition
and remand his case to the district court with instructions to impose a new condition
that is consistent with Gnirke.
Wong’s sentence of five years’ imprisonment followed by a lifetime term of
supervised release is AFFRIMED. The condition of his supervised release which
requires him to participate in the USPO’s computer monitoring program is also
AFFIRMED. The condition of his supervised release which forbids him from
“view[ing] or possess[ing] any materials . . . depicting or describing . . . sexually
explicit conduct as defined at 18[] U.S.C. [§] 2256(2)” is VACATED. The case is
REMANDED to the district court with instructions to reimpose that condition in a
manner that is consistent with Gnirke.

-- 6 of 6 --