United States of America v. Tony Bronson

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY BRONSON,
Defendant - Appellant.
No. 14-30239
D.C. No. 9:13-cr-00030-DWM-5
MEMORANDUM*
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
TONY BRONSON,
Defendant - Appellant.
No. 14-30240
D.C. No. 9:14-cr-00019-DWM-1
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, Senior District Judge, Presiding
Argued and Submitted December 8, 2015
FILED
DEC 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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Seattle, Washington
Before: McKEOWN and TALLMAN, Circuit Judges and GLEASON,** District
Judge.
Tony Bronson appeals his sentence following his conviction by guilty plea
to two counts of conspiracy to advertise child pornography in violation of
18 U.S.C. § 2251(d) and (e). Bronson concedes that he knowingly and voluntarily
waived “any right to appeal his sentence.” However, Bronson argues that his
appeal waiver does not apply because his sentence “violates the law.” United
States v. Watson, 582 F.3d 974, 987 (9th Cir. 2009). We have jurisdiction under
28 U.S.C. § 1291, hold the illegality exception does not apply to invalidate
Bronson’s appeal waiver, and dismiss the appeal.
1. The challenged special condition of supervised release is not
unconstitutionally vague. The special condition, which prohibits Bronson from
knowingly producing, possessing, or viewing “a visual depiction of any kind,
including a drawing, cartoon, sculpture, or painting” that: (1) “depicts a minor
engaging in sexually explicit conduct, as defined in 18 U.S.C. § 2256(2)(A)(I)-(v),
(5), (8), (9) and (10),” and (2) “is obscene, as defined in Miller v. California, 413
U.S. 15 (1973),” gives Bronson “fair notice of what is prohibited” and is not “so
** The Honorable Sharon L. Gleason, U.S. District Judge for the District
of Alaska, sitting by designation.
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standardless that it authorizes or encourages seriously discriminatory
enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008) (citation
omitted).
The condition “is limited to the prohibition of obscene material and thus
employs the same Miller requirements that the Supreme Court has already deemed
valid.” United States v. Schales, 546 F.3d 965, 973 (9th Cir. 2008); see also
United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002) (noting that
obscenity has a “recognized legal definition”). Therefore, Bronson is on fair notice
that he will violate his supervised release if he draws an obscene picture of a minor
engaging in sexually explicit conduct. See Williams, 553 U.S. at 304 (“[P]erfect
clarity and precise guidance have never been required even of regulations that
restrict expressive activity.”) (citation omitted).
2. The district court did not unconstitutionally delegate its judicial authority
to the United States probation officer, because it is the court which properly
decides the “nature [and] extent of the punishment imposed upon [Bronson].”
United States v. Stephens, 424 F.3d 876, 881 (9th Cir. 2005) (citation omitted).
While Bronson’s probation officer will “have some degree of discretion to decide
which materials the condition restricts” and will bring alleged violations of the
special condition to the district court’s attention, Bronson’s probation officer will
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not usurp the role of the judiciary. See United States v. Gnirke, 775 F.3d 1155,
1166 (9th Cir. 2015); see also United States v. Bee, 162 F.3d 1232, 1234–35 (9th
Cir. 1998). Ultimately, the court will determine whether Bronson has violated his
supervised release when a properly supported revocation petition is lodged by the
probation officer, and if sustained, how best to address the violation. See United
States v. Soltero, 510 F.3d 858, 864 n.6 (9th Cir. 2007). In sum, Bronson’s
punishment will be “within the hands of the court at the time of the hearing on
violations of the conditions of supervised release.” Id.
Because Bronson’s sentence does not “violate the law,” we enforce the
appellate waiver.
DISMISSED.
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