                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 09 2011

                                                                        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. 09-30392

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00215-EJL

  v.
                                                 MEMORANDUM *
DAVID RICHARD PIERCE,

               Defendant - Appellant.



                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                              Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       David Richard Pierce appeals from the 97-month sentence imposed

following his guilty-plea conviction for two counts of possession of sexually

explicit images of minors, in violation of 18 U.S.C. § 2252(a)(4)(B). We have

jurisdiction under 28 U.S.C. § 1291, and we affirm the custodial sentence, but

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
remand for resentencing as to some of Pierce’s supervised release conditions.

      Pierce first contends that his sentence is procedurally unreasonable. This

argument is belied by the record. The court correctly calculated the Guidelines

range; stated that the Guidelines were not mandatory; considered the 18 U.S.C.

§ 3553(a) factors; and adequately explained the sentence selected, including a

discussion of Pierce’s mitigation arguments. See United States v. Carty, 520 F.3d

984, 993 (9th Cir. 2008) (en banc). Moreover, the record shows that the court did

not base the length of Pierce’s sentence on his need for mental health treatment.

      Pierce next contends that his sentence is substantively unreasonable based

on his history of abuse and mental illness. In light of the totality of the

circumstances and the 18 U.S.C. § 3553(a) factors, we conclude that the district

court did not abuse its discretion in imposing a sentence at the bottom of the

Guidelines range. See Gall v. United States, 552 U.S. 38, 51 (2007).

      Pierce finally contends that some of the supervised release conditions

contained in the written judgment–specifically, the last ten conditions described in

the “special conditions of supervision”–were unlawfully imposed because they

were not contained in the oral pronouncement of sentence. The district court’s oral

pronouncement was ambiguous as to which of these conditions it intended to

impose, resulting in the denial of Pierce’s right to be present for the imposition of


                                            2                                    09-30392
this part of his sentence. See United States v. Napier, 463 F.3d 1040, 1043 (9th

Cir. 2006) (ambiguous oral sentence indicating that the written judgment would

include unspecified conditions of supervised release resulted in denial of

defendant’s right to be present at his sentencing). Accordingly, we remand for

resentencing with respect to the contested supervised release conditions. See id. at

1043-44.

      AFFIRMED in part; VACATED in part and REMANDED.




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