                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 21 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10272

              Plaintiff - Appellee,              D.C. No. 3:03-cr-00343-DGC-1

  v.
                                                 MEMORANDUM*
TYRONE TRAVIS BEGAY,

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                   David G. Campbell, District Judge, Presiding

                          Submitted February 10, 2014**
                            San Francisco, California

Before: TALLMAN and RAWLINSON, Circuit Judges, and RICE, District
Judge.***




        *
             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 Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.
       Appellant Tyrone Begay (“Begay”) appeals the district court’s imposition of

several conditions of supervised release. Because Begay did not object to the

challenged conditions in the district court, we review for plain error. United States

v. Blinkinsop, 606 F.3d 1110, 1118 (9th Cir. 2010). “Plain error is (1) an error that

(2) is plain, (3) affects substantial rights, and (4) seriously affects the fairness,

integrity or public reputation of judicial proceedings.” Id. at 1114 n.2.

       The district court did not plainly err in imposing Standard Condition 15,

which requires Begay to “notify third parties of risks that may be occasioned by

[his] criminal record or personal history or characteristics.” This condition is

“reasonably related to the goals of deterrence, protection of the public, or

rehabilitation . . . taking into account [Begay’s] history and personal

characteristics” and involves “no greater deprivation of liberty than is reasonably

necessary for the purposes of supervised release.” United States v. Watson, 582

F.3d 974, 982 (9th Cir. 2009). The condition provides adequate notice of the

prohibited conduct and therefore does not violate due process. See United States

v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004).

       The district court erred in imposing Special Condition 5, which requires

Begay to refrain from possessing, viewing or otherwise using “material depicting

sexually explicit conduct as defined in 18 U.S.C. § 2256(2)” or “any other material


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that is sexually stimulating, sexually oriented, or deemed to be inappropriate by the

probation officer and/or treatment provider.” Without further clarification, the

term “inappropriate” is “too vague to put [Begay] on notice of what material is

prohibited.”1 United States v. Stoterau, 524 F.3d 988, 1002 (9th Cir. 2008).

Nevertheless, we conclude that this error does not constitute plain error. To

establish plain error, Begay must “make a specific showing of prejudice.” United

States v. Olano, 507 U.S. 725, 734-35 (1993). At this juncture, any prejudice to

Begay is too speculative to satisfy this requirement. Begay’s forward-looking due

process concerns could be addressed by way of a motion to modify this condition

pursuant to 18 U.S.C. § 3583(e)(2). Moreover, “if and when [Begay’s] supervised

release is revoked, we will examine the findings to insure that [his] due process

right to notice of prohibited conduct has been observed.” United States v. Vega,

545 F.3d 743, 750 (9th Cir. 2008) (internal quotation marks and quoted source

omitted).

      Special Condition 11 requires Begay to inform his probation officer of “all

individuals with whom [he has] an intimate and/or romantic and/or sexual and


1
  This Court reversed the imposition of a nearly identical provision in United States
v. Preston, 706 F.3d 1106, 1122 (9th Cir. 2013). The Preston case has since been
taken en banc, and the panel’s published opinion may no longer be cited as binding
precedent. United States v. Preston, 727 F.3d 894 (9th Cir. 2013) (order granting
rehearing en banc).
                                          3
close emotional relationship.” Begay first argues that the district court was

required to support the imposition of this condition with special findings. See

United States v. Wolf Child, 699 F.3d 1082, 1094-95 (9th Cir. 2012). This

argument fails because, unlike the condition at issue in Wolf Child, this condition

does not infringe upon Begay’s right to intimate association. Begay may pursue an

intimate relationship with whomever he pleases; this condition simply requires him

to report the relationship to his probation officer.

       The Government concedes that this condition is impermissibly vague, and

we agree. Because “[r]easonable minds can differ greatly” about what constitutes

an “intimate,” “romantic” or “close emotional” relationship, Begay cannot

reasonably determine the breadth of this condition. United States v. Guagliardo,

278 F.3d 868, 872 (9th Cir. 2002). Here, again, however, Begay has failed to

establish that this error rises to the level of plain error, given that he has a statutory

remedy available to him under 18 U.S.C. § 3583(e)(2).

       Special Condition 8 prohibits Begay from directly or indirectly contacting

any victim or victim’s family member without prior written permission from his

probation officer. In contrast to the terms in Special Conditions 5 and 11, the

terms in this condition are not so vague as to require a person of ordinary

intelligence to guess at their meaning. See United States v. Soltero, 510 F.3d 858,


                                             4
866-67 (9th Cir. 2007) (per curiam). We are satisfied that any potential

ambiguities in these terms do not violate Begay’s right to due process. See id. at

867 n.9 (“Generally, supervised release provisions are read to exclude inadvertent

violations.” (quoting United States v. Johnson, 466 F.3d 272, 281 (2d Cir. 2006))).

       Special Condition 10 prohibits Begay from “travel[ing] outside of the county

and/or reservation where [he is] currently registered as a sex offender, without

prior permission of the probation officer.” “[T]o impose a condition that

implicates a significant liberty interest, the district court must support its decision

on the record with evidence justifying the condition.” Watson, 582 F.3d at 983.

Failure to provide such a justification is “plain procedural error.” Wolf Child, 699

F.3d at 1095. We remand for the district court to provide the required justification

on the record. See id. We decline the Government’s invitation to look to the

Supervised Release Disposition Report for supporting evidence. See id. at 1092-

93. We express no opinion as to the substantive reasonableness of this condition.

       As Begay has withdrawn his challenge to Special Condition 7, we do not

address it.

       AFFIRMED in part and REVERSED in part. VACATED in part and

REMANDED.




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                                                                                 FILED
United States v. Begay, No. 12-10272                                               FEB 21 2014

                                                                              MOLLY C. DWYER, CLERK
                                                                               U.S. COURT OF APPEALS



RICE, District Judge, with whom TALLMAN, Circuit Judge, joins, concurring.

      I agree that remand is required under United States v. Wolf Child, 699 F.3d

1082 (2012), as a result of the district court’s failure to provide an on-the-record

justification for the travel restriction in Special Condition 10. According to Wolf

Child, this was “plain procedural error” that triggers an automatic remand for

resentencing. See id. at 1095-96.

      I write separately to express my view that automatic remand in this

circumstance is improper. When a defendant fails to object to an alleged error in

the district court, we review only for plain error. United States v. Tapia, 665 F.3d

1059, 1061 (9th Cir. 2011). Plain error is “(1) error, (2) that is plain, and (3) that

affects substantial rights.” United States v. Cotton, 535 U.S. 625, 631 (2002)

(internal quotation marks omitted). “If all three conditions are met, [we] may then

exercise [our] discretion to notice a forfeited error, but only if (4) the error

seriously affects the fairness, integrity, or public reputation of judicial

proceedings.” Id. (emphasis added).

      Our authority to review for plain error is derived from Federal Rule of

Criminal Procedure 52(b), which vests us with discretion to reverse a final

judgment based upon an otherwise forfeited error. United States v. Olano, 507
U.S. 725, 731-32 (1993). As the Supreme Court explained in Olano, we may only

exercise our discretion under Rule 52(b) when a forfeited error “seriously affects

the fairness, integrity or public reputation of judicial proceedings.” Id. at 732.

Whether an error has seriously affected the fairness, integrity or public reputation

of judicial proceedings necessarily turns on the facts and circumstances of each

case. Puckett v. United States, 556 U.S. 129, 142 (2009) (emphasizing that the

fourth prong of the plain error analysis must be “applied on a case-specific and

fact-intensive basis”). We are therefore forbidden from adopting a “per se

approach” to plain error review, id., as doing so would render our discretion to

correct a forfeited error illusory, Olano, 507 U.S. at 737.

      I believe that automatic remand upon a finding of “plain procedural error”

constitutes an improper per se approach to plain error review. When a defendant

has not objected to a supervised release condition, even one that “implicate[s] a

particularly significant liberty interest,” see Wolf Child, 699 F.3d at 1096, we must

perform a “case-specific and fact-intensive” review to determine whether the

fairness, integrity or public reputation of the proceedings has been seriously

affected, Puckett, 556 U.S. at 142. Remanding as a matter of course simply

because the district judge did not provide an on-the-record justification for




                                           2
imposing the condition is an abrogation of the discretion vested in us by Rule

52(b). Olano, 507 U.S. at 737.

      Finally, I note that defendants in Begay’s position have a statutory remedy

available to them under 18 U.S.C. § 3583(e)(2). The existence of this remedy cuts

sharply against a finding of plain error. After all, if a defendant remains free to

pursue a modification of an allegedly illegal condition in the district court under §

3583(e)(2), how can we possibly conclude that the fairness, integrity or public

reputation of the proceedings has been seriously affected? If the error is truly

“plain,” the district court will likely correct it—or, at the very least, supply the

missing on-the-record justification for imposing the challenged condition.

      I would encourage the full court to revisit Wolf Child’s automatic-reversal

approach in a future case.




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