United States v. Eley

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 4 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 23-1254 D.C. No. Plaintiff - Appellee, 3:21-cr-00011-LRH-CSD-1 v. MEMORANDUM* RYAN THOMAS ELEY, Defendant - Appellant.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding Argued and Submitted June 6, 2024 Pasadena, California Before: CLIFTON and COLLINS, Circuit Judges, and RODRIGUEZ, District Judge.** Ryan Thomas Eley appeals from a sentence imposed under 18 U.S.C. § 2252A(a)(2) and (b)(1) for receipt of child pornography. After Eley pled guilty, the district court imposed a below-guidelines prison sentence accompanied with a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. lifetime term of supervised release. The district court imposed additional special conditions related to Eley’s offense, but did not orally pronounce the standard conditions of supervised release. We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, vacate in part, and remand.

The government concedes that remand is appropriate for the district court to revisit Special Conditions 10,1 11, and 12.2 On remand, the district court will be required to orally pronounce the standard conditions of supervised release. United States v. Montoya, 82 F.4th 640, 656 (9th Cir. 2023) (en banc).

Eley’s other contentions lack merit. He first asserts that Special Conditions and 16, both of which relate to computer monitoring, are unconstitutionally vague.3 United States v. Sales, 476 F.3d 732, 737-38 (9th Cir. 2007). Eley did not challenge those conditions below, so his assertions are subject to plain error review. United States v. Nishida, 53 F.4th 1144, 1150 (9th Cir. 2022).

We have held that computer monitoring conditions are unconstitutionally vague when they provide no indication of what data is to be monitored. Sales, 476 F.3d at 737-38. By contrast, Special Condition 16 makes clear that monitoring is “for the purposes of determining whether the computer contains any prohibited data,” clearly referring to the “sexually explicit” content discussed in Special Condition 14. See United States v. Quinzon, 643 F.3d 1266, 1272 (9th Cir. 2011) (interpreting computer monitoring conditions narrowly based on limiting language in other conditions). Both conditions therefore appear to solely permit monitoring of, and searches for, sexually explicit content.4 As such conditions are sufficiently tailored to Eley’s transgressions, he fails to establish that the district court plainly erred in imposing them. Nishida, 53 F.4th at 1150.

subject to computer monitoring . . . for the purposes of determining whether the computer contains any prohibited data prior to installation of the monitoring software” and ensuring the monitoring is functioning without impediment.

Finally, the district court did not abuse its discretion in following the Sentencing Guidelines recommendation and imposing a lifetime term of supervised release for Eley’s offense. See United States v. Apodaca, 641 F.3d 1077, 1082 (9th Cir. 2011); U.S.S.G. § 5D1.2. The 18 U.S.C. § 3553(a) factors weigh against Eley: he had an admittedly long history of sexual interest in children and a sizable library of child pornography, including images of a violent nature. While Eley argues that the district court’s downward departure on his prison sentence is inconsistent with imposing a lifetime term of supervised release, the court clearly stated that the lifetime term was an “insurance policy” against the shorter sentence it was imposing. See Apodaca, 641 F.3d at 1082 (confirming that courts are allowed to apply such reasoning).

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

4 23-1254