                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 26 2013

                                                                        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. 11-50243

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00586-ODW-1

  v.
                                                 MEMORANDUM *
CHRISTIAN HERNANDEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                     Otis D. Wright, District Judge, Presiding

                      Argued and Submitted February 13, 2013
                               Pasadena, California

Before: BERZON and WATFORD, Circuit Judges, and CARR, Senior District
Judge.**

       1. Hernandez challenges the district court’s imposition of the two-level

sentencing enhancement that applies “[i]f the defendant was a parent, relative, or




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern District of Ohio, sitting by designation.
legal guardian of the minor involved in the offense, or if the minor was otherwise

in the custody, care, or supervisory control of the defendant.” U.S.S.G. §

2G2.1(b)(5). The district court did not abuse its discretion in applying this

enhancement. The Sentencing Commission explains that this enhancement “is

intended to have broad application and includes offenses involving a minor

entrusted to the defendant, whether temporarily or permanently.” Id. § 2G2.1 cmt.

n.3(A). At sentencing, the district court heard evidence that Hernandez and the

victim’s aunt lived together, that the victim often visited them, and that the victim

was sometimes left alone with Hernandez while her aunt ran errands.

      2. Hernandez raises numerous challenges to the procedural and substantive

reasonableness of his prison sentence, none of which have merit. The district court

adhered to the sentencing procedures that we laid out in United States v. Carty, 520

F.3d 984, 991–92 (9th Cir. 2008) (en banc). The court first correctly calculated the

applicable Guidelines range, gave both parties a chance to argue for the sentence

they thought appropriate, considered the 18 U.S.C. § 3553(a) factors, and

explained its reasons for the selected sentence. Contrary to Hernandez’s

contentions, the district court did not rely on clearly erroneous facts at sentencing;

did not excessively rely on any one § 3553(a) factor; did not abuse its discretion in

denying Hernandez’s request for a voluntary disclosure downward departure under


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U.S.S.G. § 5K2.16; did not fail to consider unwarranted sentencing disparities; and

did not unreasonably apply sentencing enhancements. As “we see nothing unusual

about [Hernandez’s] circumstances to compel a lower sentence than the low-end of

the Guidelines range,” Hernandez’s low-end Guidelines sentence is also not

substantively unreasonable, whether or not it is the sentence we would have

chosen. Carty, 520 F.3d at 996.

      3. Hernandez contends that the residency restriction imposed as Condition

No. 15 of his lifetime term of supervised release is unreasonable and overbroad.

Because Hernandez did not object at sentencing to Condition No. 15, we review

the condition for plain error. See United States v. Blinkinsop, 606 F.3d 1110, 1118

(9th Cir. 2010). “A district judge need not state at sentencing the reasons for

imposing each condition of supervised release,” but only if those reasons are

“apparent from the record.” Id. at 1119 (emphasis omitted). Here, the district court

plainly committed procedural error in imposing Condition No. 15, as it did not

state its reasons for imposing that condition, and they are not apparent from the

record.1




      1
       Because we hold that the district court committed procedural error in
imposing Condition No. 15, we do not reach the question of the substantive
reasonableness of such a residency restriction.

                                           3
      District courts may impose a supervised release condition only if it meets

two criteria: First, the condition must be “reasonably related to the goal of

deterrence, protection of the public, or rehabilitation of the offender”; and second,

it must “involve no greater deprivation of liberty than is reasonably necessary for

the purposes of supervised release.” United States v. Daniels, 541 F.3d 915, 924

(9th Cir. 2008) (internal quotation marks omitted). Here, the problem arises at the

second criterion. It is apparent from the record that Condition No. 15, which seeks

to minimize Hernandez’s access to children, is “reasonably related to the goal of . .

. protection of the public,” but it is not apparent why it “involve[s] no greater

deprivation of liberty than is reasonably necessary” to achieve that goal. Id.

      In particular, when imposing a residency restriction such as this one, the

district court must explain, if the explanation is not apparent from the record, “how

the chosen distance furthers the purpose of [the defendant]’s supervised release”

and why the chosen distance, as opposed to any other distance, is sufficient but no

greater than necessary. United States v. Rudd, 662 F.3d 1257, 1263 (9th Cir. 2011);

see also United States v. Collins, 684 F.3d 873, 890–92 (9th Cir. 2012). This

explanation must be “tailored to the nature and circumstances of [the defendant]’s

offense and his specific character and history.” Rudd, 662 F.3d at 1263. In the

absence of such an explanation, the choice of distance “appears arbitrary.” Id.


                                           4
        Here, the district court did not provide any explanation for the residency

restriction, much less for the particular distance chosen of 2,000 feet, and its

reasons for selecting that distance are not apparent from the record. The Probation

Office recommended the restriction, but did not explain why; it offered only the

generic rationale that “sex offender conditions, including treatment and restriction

of access to minors, are recommended given the instant offense involving sexual

contact with a child.” This rationale addresses only the need for some restriction; it

does not address why the particular restriction imposed is warranted or why it is no

more restrictive than necessary.

        We, therefore, vacate Condition No. 15 and remand to the district court for

reconsideration after consideration of any submissions by the parties. If the district

court reimposes the condition (or a modified version thereof), it should provide an

explanation of why the terms of the condition — including the distance chosen, the

specified list of institutions, and whether or not the Probation Officer has discretion

to modify those terms — are both sufficient and “involve no greater deprivation of

liberty than is reasonably necessary” to protect the public in light of Hernandez’s

offense, character, and history. Daniels, 541 F.3d at 924; see Rudd, 662 F.3d at

1263.




                                           5
      4. Hernandez contends that the district court erred in calculating the amount

of restitution. He did not challenge the amount at sentencing, so we review the

restitution amount for plain error. See United States v. Bright, 353 F.3d 1114, 1120

(9th Cir. 2004). In a letter brief to this court and again at oral argument, the

government conceded that the restitution amount that it proposed to the district

court, and which the district court adopted, was calculated erroneously. We

therefore vacate Hernandez’s restitution order and remand to the district court for

recalculation of the restitution amount. On remand, the district court should impose

restitution in the amount of the victim’s past counseling expenses plus only those

future counseling expenses that it can estimate “with reasonable certainty.” United

States v. Laney, 189 F.3d 954, 966 n.14 (9th Cir. 1999).

      AFFIRMED IN PART, VACATED IN PART, and REMANDED.




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