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United States of America v. Daniel Apodaca

April 12, 2011


Appeal from the United States District Court for the Central District of California Dean D. Pregerson, District Judge, Presiding D.C. No. 2:08-cr-0793- DDP-1

The opinion of the court was delivered by: Cudahy, Circuit Judge



Argued and Submitted October 5, 2010-Pasadena, California

Before: Richard D. Cudahy,*fn1 Kim McLane Wardlaw and William A. Fletcher, Circuit Judges.

Opinion by Judge Cudahy; Concurrence by Judge W. Fletcher


Daniel Apodaca pleaded guilty to one count of possession of child pornography in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2). The district court deviated downward from the United States Sentencing Guidelines' recommendation and sentenced Apodaca to two years imprisonment and lifetime supervised release. Apodaca appeals the supervised release portion of his sentence, arguing that its length was unreasonable and that one of the supervised release conditions violates his constitutional rights. We affirm.


A. Jurisdiction and Standard of Review

We review the length of a term of supervised release for reasonableness. United States v. Daniels, 541 F.3d 915, 921 (9th Cir. 2008). When reviewing a sentence for reasonableness, we "merely ask[ ] whether the trial court abused its discretion." Rita v. United States, 551 U.S. 338, 351 (2007). Similarly, this court reviews "a district court's determination of the appropriate supervised release conditions . . . for abuse of discretion." United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006). We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291.

B. Factual and Procedural Background

In January 2008, the Los Angeles Police Department conducted an undercover, online investigation of individuals sharing child pornography over the internet. During the course of this investigation, a detective discovered that a computer owned by Daniel Apodaca contained a sizeable library of child pornography. On March 6, 2008, officers executed a federal search warrant at Apodaca's apartment. These officers seized Apodaca's laptop, which contained the pornographic materials the police had discovered earlier, and several compact discs, which contained further pornographic images and videos of children.

On July 23, 2008, Apodaca was arrested and charged with one count of violating 18 U.S.C. § 2252A(a)(5)(B), (b)(2) in the U.S. District Court for the Central District of California. The court released him on a $10,000 appearance bond and ordered that he comply with certain conditions of release. Apodaca fully complied with the terms of his release on bond.

On December 12, 2008, Apodaca appeared before the district court and pleaded guilty. He acknowledged that he had knowingly possessed child pornography, that he knew that the persons depicted in the pornography were minors and that some of the pornography depicted children engaged in sadistic or masochistic acts. At the plea hearing, the court ensured that Apodaca knew that the maximum penalty for his offense included a lifetime period of supervised release.

On July 10, 2009, the district court conducted Apodaca's sentencing hearing. The court began by making sure that it had received and reviewed all of the sentencing documents that the parties had filed. It went on to hear arguments from both parties concerning what punishment the court should impose on Apodaca. The court also heard Apodaca's allocution.

After acknowledging all of the information the parties had submitted, the court calculated an advisory offense level of 28 for Apodaca's conduct and a Criminal History Category of I. It went on to sentence Apodaca to 24 months imprisonment, a multiple-year downward deviation from the Guidelines-recommended sentence of 78 to 97 months. In deciding to depart downward, the court found that Apodaca's behavior fell on the low end of the spectrum of relevant criminal conduct and that he presented a low risk of recidivism.

The district court further ordered that, upon release from imprisonment, Apodaca would be placed on supervised release for the Guidelines-recommended term of life. While on supervised release, the court stated that Apodaca would have to comply with fifteen specific terms and conditions. Fourteen of these conditions were taken directly from the initial Presentence Report filed by Apodaca's Probation Officer, with minor modifications being incorporated to accommodate objections raised by Apodaca's counsel at the sentencing hearing. The fifteenth condition was first proposed in the United States' response to Apodaca's sentencing position and was adopted by the Probation Officer in her second addendum to her Presentence Report. This provision prohibited Apodaca from "associat[ing] or hav[ing] verbal, written, telephonic, or electronic communication with any person under the age of 18," with limited exceptions. Finally, in response to Apodaca's concerns about the length of his term of ...

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