                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 18 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50000

                Plaintiff-Appellee,             D.C. No.
                                                5:14-cr-00039-VAP-1
 v.

ENRIQUE CESAR WONG,                             MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                   Virginia A. Phillips, Chief Judge, Presiding

                             Submitted April 4, 2017**
                               Pasadena, California

Before: PLAGER,*** BEA, and OWENS, Circuit Judges.

      Enrique Cesar Wong appeals from the district court’s order revoking his term

of supervised release and sentencing him to five years’ imprisonment followed by a



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable S. Jay Plager, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
lifetime term of supervised release. Wong also appeals two conditions of his term of

supervised release: one which requires him to participate in a “computer monitoring

program” administered by the U.S. Probation Office (“USPO”),1 and another which

forbids him from “view[ing] or possess[ing] any materials . . . depicting or

describing,” inter alia, “sexually explicit conduct as defined at 18[] U.S.C. [§]

2256(2).”   We review a sentence following the revocation of a defendant’s

supervised release for “reasonableness,” United States v. Simtob, 485 F.3d 1058,

1061 (9th Cir. 2007), and we review the conditions of a defendant’s term of

supervised release for abuse of discretion, United States v. Napulou, 593 F.3d 1041,

1044 (9th Cir. 2010). Because the parties are familiar with the facts of this case, we

do not recount them here.

      We affirm Wong’s five-year term of imprisonment, his lifetime term of

supervised release, and the condition of his supervised release which requires him

to participate in the USPO’s computer monitoring program. We vacate the condition

of Wong’s supervised release which prohibits him from viewing or possessing

depictions or descriptions of “sexually explicit conduct” within the meaning of

§ 2256(2), and we remand with instructions to reimpose that condition in a form that


      1
        This program requires a participant, inter alia, to allow the USPO to install
“computer monitoring software” on his “computer system[s],” to “disclose to [his]
probation officer all accounts on any social networking site,” and to “provide user
names and passwords . . . for all devices[] and web-based email accounts to [his]
probation officer.”

                                          2
complies with United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015).

      1.     The district court committed neither procedural nor substantive error in

imposing Wong’s sentence. First, the district court did not commit procedural error

by relying on improper statutory factors or by failing adequately to explain the

reasons for Wong’s sentence. The district court expressly considered the “nature and

circumstances of [Wong’s] offense,” the “need for deterrence,” and the “need to

protect the public from this defendant,” all of which are permissible factors for a

court to consider when sentencing a defendant following the revocation of a term of

supervised release. See 18 U.S.C. § 3583(e). Though the district court also cited the

“seriousness” of Wong’s “conduct” and “the need for the sentence to reflect that,” it

did so only in relation to other, permissible sentencing factors, such as the “need to

protect the public from [Wong].” See Simtob, 485 F.3d at 1062 (“The seriousness of

the offense underlying the revocation, though not a focal point of the inquiry, may

be considered to a lesser degree as part of the criminal history of the violator.”).

      Nor are we persuaded by Wong’s remaining claims of procedural error.

Wong’s letters from his friends and family, which generally characterized Wong as

“someone who repeatedly sacrifice[s] himself for [others],” were not sufficiently

“specific” or “tethered to a relevant [statutory] factor” to require express discussion

by the district court. United States v. Carty, 520 F.3d 984, 992–93 (9th Cir. 2008).

And although the USPO’s June 18, 2014 petition incorrectly stated the age of the


                                           3
victim of one of the crimes underlying the revocation of Wong’s supervised

release—the petition stated that the victim was fourteen years old when in fact she

was sixteen—Wong’s culpability under the applicable statute of conviction would

have been the same even if the victim had been fourteen. See Cal. Pen. Code § 288.2

(prohibiting “knowingly . . . send[ing] . . . harmful matter” to a “minor”); Cal. Fam.

Code § 6500 (defining a “minor” as “any individual who is under 18 years of age”).

Further, nowhere in the record did the district court cite the victim’s age as an

aggravating circumstance or even a reason for imposing Wong’s revocation

sentence. Thus, Wong’s sentence was not “based on [a] clearly erroneous fact[].”

United States v. Collins, 684 F.3d 873, 888 (9th Cir. 2012).

      Finally, the district court did not commit substantive error in imposing

Wong’s sentence. Wong committed the conduct underlying his arrest in June 2014

while released on bail pending sentencing proceedings in state court, and while on

electronic monitoring by the USPO pending his revocation-of-supervised-release

proceedings in district court. Thus, Wong’s above-guidelines sentence was proper

to “sanction [him] for his breach of [the court’s] trust[.]” United States v. Miqbel,

444 F.3d 1173, 1182 (9th Cir. 2006) (internal quotation marks omitted). Moreover,

the conduct underlying Wong’s February and June 2014 arrests, both of which

involved unlawful sexual activity with minors, supports the district court’s

conclusion that a longer term of imprisonment and supervised release was justified


                                          4
to “deter[] this defendant,” to “send a message of deterrence to others,” and to

“protect the public from this defendant.” See 18 U.S.C. § 3583(e).

      2.     Nor did the district court abuse its discretion by imposing a condition

of supervised release that requires Wong to participate in the USPO’s computer

monitoring program. The condition does not authorize the USPO to monitor Wong’s

offline computer activity, as Wong contends. See United States v. Quinzon, 643 F.3d

1266, 1272 (9th Cir. 2011) (holding that because a defendant’s condition required

him to “pay the cost of the computer monitoring, in an amount not to exceed $30 per

month per device connected to the internet,” the condition impliedly authorized only

surveillance of online activity (emphasis in original) (internal quotation marks

omitted)). Nor does the condition “force a waiver of [attorney-client] privilege,”

because according to the “Computer Monitoring Program Rules and Participation

Agreement,” all Wong or his attorney must do to ensure that a privileged email will

not be read by Wong’s probation officer is include the phrase “Legal Email” in the

subject line of that email.

      3.     The district court abused its discretion by imposing a condition of

supervised release that prohibits Wong from “view[ing] or possess[ing] any

materials . . . depicting or describing . . . sexually explicit conduct as defined at 18[]

U.S.C. [§] 2256(2).” In United States v. Gnirke, we held that a condition of

supervised release which likewise incorporated § 2256(2)’s definition of “sexually


                                            5
explicit conduct” was invalid because it “involve[d] [a] greater deprivation of liberty

than [was] reasonably necessary” to achieve the purposes of supervised release. 775

F.3d at 1160. To the extent that Wong’s condition incorporates § 2256(2)’s

definition of “sexually explicit conduct,” it violates our holding in Gnirke.

      The government concedes that the condition violates Gnirke but nonetheless

asks the Court to affirm the condition with an “understanding” that it will be applied

in a manner that is consistent with Gnirke. But the government cites no authority for

the proposition that this Court may affirm a facially invalid condition of supervised

release with the “understanding” that it will be applied in a manner that is consistent

with our precedent, and we are aware of none. Thus, we vacate Wong’s condition

and remand his case to the district court with instructions to impose a new condition

that is consistent with Gnirke.

      Wong’s sentence of five years’ imprisonment followed by a lifetime term of

supervised release is AFFRIMED. The condition of his supervised release which

requires him to participate in the USPO’s computer monitoring program is also

AFFIRMED. The condition of his supervised release which forbids him from

“view[ing] or possess[ing] any materials . . . depicting or describing . . . sexually

explicit conduct as defined at 18[] U.S.C. [§] 2256(2)” is VACATED. The case is

REMANDED to the district court with instructions to reimpose that condition in a

manner that is consistent with Gnirke.


                                          6
