                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            AUG 20 2015
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No. 14-50080

              Plaintiff - Appellee,              D.C. No. 3:13-cr-03109-LAB-1

 v.

ARMANDO MENDOZA-PERALTA,                         MEMORANDUM*

              Defendant - Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                       Argued and Submitted August 6, 2015
                               Pasadena, California

Before: SILVERMAN, SACK**, and WARDLAW, Circuit Judges.

      Armando Mendoza-Peralta appeals the sentence he received following his

conviction by guilty plea to one count of receiving images of minors engaged in

sexually explicit conduct in violation of 18 U.S.C. § 2252(a)(2). We have


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm in part,

vacate in part, and remand.

      1. The district court did not procedurally err by supposedly inadequately

explaining its selection of a sex offender evaluation condition that includes a

"physiological testing" requirement. A physiological testing condition that entails

penile plethysmograph testing implicates a "particularly significant liberty

interest," such that a sentencing court imposing such a condition must meet

heightened procedural requirements. United States v. Weber, 451 F.3d 552, 568-

69 (9th Cir. 2006). But the district court explained that the physiological testing

required under the condition it imposed would not include the type of "intrusive"

testing, like plethysmograph testing, that requires "further justification" by the

court. The United States Probation Office ("USPO") thus cannot order Mendoza to

undergo penile plethysmograph testing under this condition, because the court

limited the type of testing allowed by the condition. See United States v. Roybal,

737 F.3d 621, 624-25 (9th Cir. 2013), cert. denied, 134 S. Ct. 2742 (2014).

      2. The second challenged condition, which prohibits Mendoza from

accessing "materials . . . that depict[] 'sexually explicit conduct' involving children

and/or adults" or patronizing any establishment where such materials are available,

may, as written, implicate a particularly significant liberty interest. See United


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States v. Gnirke, 775 F.3d 1155, 1160 (9th Cir. 2015). The district court did not

comply with the heightened procedural requirements applicable to such conditions.

See id.

      Some of the court's extensive comments at sentencing suggest that it

intended to limit the condition so that it would not implicate a particularly

significant liberty interest. If the prohibition were limited, for example, "(1) to any

materials with depictions of 'sexually explicit conduct' involving children, as

defined by 18 U.S.C. § 2256(2), and (2) to any materials with depictions of

'sexually explicit conduct' involving adults, defined as explicit sexually stimulating

depictions of adult sexual conduct that are deemed inappropriate by [Mendoza's]

probation officer," Gnirke, 775 F.3d at 1166, it would not implicate a particularly

significant liberty interest, see id. at 1160. If we could confidently conclude that

the district court had so limited the condition, we might affirm that limitation and

thus avoid a remand. See id. at 1166-67. Under these circumstances, however, we

are constrained to remand with directions to the district court to define with

specificity what is prohibited by this condition and to amend the written condition

accordingly.

      3. The district court did not impermissibly delegate its sentencing authority

to the USPO when it imposed a sex offender evaluation condition that leaves to the


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discretion of the USPO the type and number of physiological tests Mendoza must

undergo as part of that evaluation. First, unlike the mandatory non-treatment drug-

testing condition at issue in United States v. Stephens, 424 F.3d 876 (9th Cir.

2005), the discretionary sex offender evaluation testing condition at issue here is

not imposed by a statute or guideline reflecting congressional intent to delegate the

number of tests to the court. See id. at 882-83; U.S.S.G. § 5D1.3(d)(7)(A).

Additionally, the record does not suggest that the physiological testing entailed by

sex offender evaluation is "penological in nature." Stephens, 424 F.3d at 884.

Unlike mandatory non-treatment drug testing, evaluative sex offender testing does

not expose a defendant to the possibility of mandatory revocation and

imprisonment. See 18 U.S.C. § 3583(g).

      Second, as we have construed the physiological testing aspect of the sex

offender condition, it does not implicate so significant a liberty interest as to afford

Mendoza's probation officer the effective authority to determine "'the nature or

extent of the punishment' to be imposed." United States v. Esparza, 552 F.3d

1088, 1091 (9th Cir. 2009) (quoting Stephens, 424 F.3d at 881). Unlike a

condition that allows a probation officer to choose between two conditions that are

"different in kind" with respect to a defendant's liberty interest, such as a condition

mandating outpatient or inpatient treatment, id., the condition at issue here allows


                                            4
the probation officer to choose the frequency and content of physiological tests that

do not implicate particularly significant liberty interests. Cf. Stephens, 424 F.3d at

883 ("Where the district court specifies that the defendant shall participate in a

drug treatment program, it may properly delegate to the probation officer the

responsibility for selecting the program . . . [and] design[ing] the course of

treatment, including the frequency of []testing, to ensure that the treatment is

effective.").

       4. The district court did not procedurally err by "using clearly erroneous

facts when . . . determining the sentence." United States v. Armstead, 552 F.3d

769, 776 (9th Cir. 2008). Because Mendoza did not object to the district court's

alleged use of erroneous facts at sentencing, our review is for plain error. See

United States v. Christensen, 732 F.3d 1094, 1101 (9th Cir. 2013). Mendoza has

failed to show that the court relied on its apparently erroneous calculation of

Mendoza's age upon completion of his term of supervised release in determining

his sentence. Other than one passing comment, the record does not suggest that the

court chose a twenty-year term because of any particular age it wanted Mendoza to

have attained upon completion of his sentence. The court offered several reasons

for selecting a twenty-year, as opposed to the USPO's recommended fifteen-year,

term, including that the longer term facilitated a reduction in the term of


                                           5
imprisonment. "At best, it is highly uncertain whether [Mendoza] would have

received a lesser sentence," id. at 1106, had the court correctly stated or calculated

Mendoza's age upon the completion of his term of supervised release, and he

therefore has not met "his burden of showing that the error [if any occurred]

actually affected his substantial rights," id. (quoting Jones v. United States, 527

U.S. 373, 394-95 (1999)).

      AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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