                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 9 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30238

                Plaintiff-Appellee,             D.C. No. 3:13-cr-00064-HZ-1

 v.
                                                MEMORANDUM*
CYRUS ANDREW SULLIVAN,

                Defendant-Appellant.



                  Appeal from the United States District Court
                           for the District of Oregon
                  Marco A. Hernandez, District Judge, Presiding

                      Argued and Submitted October 6, 2017
                               Portland, Oregon

Before: PAEZ and BEA, Circuit Judges, and ANELLO,** District Judge.

      Cyrus Sullivan appeals the district court’s order amending and modifying

conditions of supervised release imposed following Sullivan’s conviction for

making a threatening communication in violation of 18 U.S.C. § 875(c). We have


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Michael M. Anello, United States District Judge for
the Southern District of California, sitting by designation.
jurisdiction under 28 U.S.C. § 1291. We review a district court’s conclusions

regarding supervised release conditions for abuse of discretion. United States v.

Gnirke, 775 F.3d 1155, 1159 (9th Cir. 2015). We affirm.

      Prior to his arrest, Sullivan created and operated a website called

STDCarriers.com that allowed registered users to post anonymously information

about the sexual health of third parties. One woman, A.K., learned that her former

boyfriend had posted derogatory information about her on Sullivan’s website.

A.K. contacted Sullivan to remove this information, which sparked a series of

combative communications between Sullivan and A.K. Eventually, Sullivan sent

A.K. a hostile and threatening email that resulted in the criminal charge under §

875(c). Sullivan pleaded guilty, and the district court imposed several conditions

of supervision. In this appeal, Sullivan seeks relief from special condition 8, which

prohibits Sullivan from owning or operating any former website, including

STDCarriers.com, and any similar website that offers reputation management

services.1

      Sullivan contends special condition 8 constitutes an impermissible



1
  Sullivan also challenges the imposition of special condition 12, which subjects
his employment to approval by the probation officer. The district court, however,
recently revoked Sullivan’s supervised release and imposed new release
conditions, which include special condition 8 but omit special condition 12. As
such, Sullivan’s challenge to special condition 12 is moot.


                                         2                                    16-30238
occupational restriction.2 A district court can impose an occupational restriction

that limits a defendant’s engagement only “in a specified occupation, business, or

profession bearing a reasonably direct relationship to the conduct constituting the

offense.” 18 U.S.C. § 3563(b)(5). Additionally, the district court must find “there

is reason to believe that, absent such restriction, the defendant will continue to

engage in unlawful conduct similar to that for which the defendant was convicted.”

U.S.S.G. § 5F1.5(a)(2).

      Sullivan argues there is no direct relationship between the operation of

STDCarriers.com and making a threatening communication via email. However,

as the district court noted, “This whole event arose because the defendant was

running this particular business.” Sullivan also used his business email address to

send the threatening email to A.K. Accordingly, the district court did not abuse its

discretion in finding a direct relationship between the occupational restriction and


2
  This Court affirmed on direct appeal the imposition of a former version of
special condition 8, which prohibited Sullivan from accessing any online computer
service or directing third parties to do so on his behalf without prior written
approval of the probation officer. See United States v. Sullivan, 588 F. App’x 631,
632 (9th Cir. 2014) (“We have examined special conditions of supervised release 7
and 8 and conclude that they are not illegal.”). The government argues collateral
estoppel bars Sullivan’s current challenge, and moves for judicial notice of
Sullivan’s opening brief filed in his direct appeal. The government’s motion is
granted. Collateral estoppel, however, does not bar Sullivan’s current challenge
because the issues in the two actions are not “sufficiently similar and sufficiently
material . . . to justify invoking the doctrine.” United States v. Smith-Baltiher, 424
F.3d 913, 919 (9th Cir. 2005) (quoting United States v. Romeo, 114 F.3d 141, 143
(9th Cir. 1997)).

                                           3                                    16-30238
Sullivan’s offense of conviction. See United States v. Betts, 511 F.3d 872, 874-75

(9th Cir. 2007).

      We also reject Sullivan’s argument that special condition 8 is not reasonably

necessary to protect the public because there is no evidence that, absent special

condition 8, he “will continue to engage in unlawful conduct similar to that for

which he was convicted.” U.S.S.G. § 5F1.5(a)(2). The record reflects that

Sullivan’s website generated “complaints from people literally around the world,”

and Sullivan’s attorney conceded at the motion hearing that “it’s always possible

that this situation is going to resume itself.” The district court did not abuse its

discretion in finding that Sullivan would likely engage in unlawful conduct similar

to issuing threatening communications if he continued to operate his website or

any similar website. See Betts, 511 F.3d at 875 (“The public is entitled to be

protected against crimes flowing from the same character trait demonstrated by the

crime.”).

      AFFIRMED.




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