                                                                             FILED
                           NOT FOR PUBLICATION                                JUN 01 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 11-10333

              Plaintiff - Appellee,              D.C. No. 4:06-cr-01277-CKJ-JCG-
                                                 1
  v.

ROBERT THOMAS O’DONNELL,                         MEMORANDUM *

              Defendant - Appellant.



                   Appeal from the United States District Court
                            for the District of Arizona
                   Cindy K. Jorgenson, District Judge, Presiding

                        Argued and Submitted May 17, 2012
                             San Francisco, California

Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

       Robert Thomas O’Donnell appeals his supervised release revocation and the

sentence imposed upon revocation. We have jurisdiction pursuant to 28 U.S.C.

§ 1291, and we affirm. Since the parties are familiar with the facts and

background, we repeat them here only as necessary.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      O’Donnell claims that the district court erred in imposing certain supervised

release conditions upon revocation. District courts have wide discretion in

imposing such conditions, and may impose conditions that are “reasonably related

to the goal of deterrence, protection of the public, or rehabilitation of the offender,

and involve no greater deprivation of liberty than is reasonably necessary for the

purposes of supervised release.” United States v. Rearden, 349 F.3d 608, 618 (9th

Cir. 2003) (internal quotation marks and citation omitted). Each of the challenged

conditions is proper.

      The substance abuse treatment requirement will help protect the public and

aid in rehabilitation since O’Donnell has a history of drug use. Similarly, the

residential re-entry special condition will help O’Donnell reintegrate into society.

The restriction on alcohol is appropriate because the district court found that

alcohol use impairs judgment and may make O’Donnell re-offend. See United

States v. Wise, 391 F.3d 1027, 1031 (9th Cir. 2004) (supervised release condition

need not be related to the offense of conviction). The financial disclosure

conditions are reasonably related to the 18 U.S.C. § 3553(a) factors because, as the

district court found, financial issues lead to stress, which could be a triggering

factor for O’Donnell.




                                           2
      The prohibition on sexually explicit material is related both to O’Donnell’s

offense and protection of the public. See Rearden, 349 F.3d at 619-20; see also

United States v. Bee, 162 F.3d 1232, 1234-35 (9th Cir. 1998) (probationer does not

have an unqualified right to “sexually stimulating or sexually oriented materials”).

Similarly, the restrictions related to underage females are designed to facilitate

rehabilitation and reduce risk to society. See United States v. Daniels, 541 F.3d

915, 928 (9th Cir. 2008) (barring defendant from employment “that causes him to

regularly contact persons under the age of 18”).

      A sex-offender may be prohibited from using any online computer service.

Rearden, 349 F.3d at 620-21. Because the Internet was essential to O’Donnell’s

offense, such a restriction is proper. United States v. Antelope, 395 F.3d 1128,

1142 (9th Cir. 2005). O’Donnell may still use a computer that is not connected to

the internet or seek approval for internet use from his probation officer,

distinguishing his situation from United States v. Riley, 576 F.3d 1046, 1049 (9th

Cir. 2009), which disallowed a blanket prohibition on computer use. The

restriction against recording devices is proper because it is related to O’Donnell’s

offense. United States v. Blinkinsop, 606 F.3d 1110, 1122-23 (9th Cir. 2010).

      O’Donnell next claims that the district court erred by denying him adequate

notice, confrontation rights, and due process at the revocation hearing. Before the


                                           3
hearing, O’Donnell was provided with copies of pictures that the prosecution

would rely on to meet its burden; he understood the allegations against him and

had sufficient notice of the allegations to prepare a defense. United States v.

Martin, 984 F.2d 308, 310 (9th Cir. 1993). O’Donnell’s right to cross-examine

was not violated because the district court did not rely upon the probation officer’s

testimony regarding the deposition transcript, and the photographs at issue were

properly admitted based on Hafner’s testimony. Of note, O’Donnell did not ask

for a continuance with respect to the alleged surprise witness, nor did O’Donnell

demonstrate resultant prejudice. No due process violation occurred.

      Finally, the probation department had the authority to provide O’Donnell an

explanation of the prohibition against “contact” with minors. See United States v.

Stephens, 424 F.3d 876, 880 (9th Cir. 2005) (“Congress has given probation

officers broad statutory authority to supervise offenders and to enforce a

sentencing court’s terms and conditions of supervised release and probation.”

(citing 18 U.S.C. §§ 3603, 3606)). In any event, because the district court did not

rely upon the probation department’s clarification when revoking supervised

release, any error in the probation department’s definition was harmless error. As

referenced at oral argument, O’Donnell may seek “approval of the probation




                                          4
officer” to deviate from the restrictions on contact with underage females and

internet access.

      AFFIRMED.




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