                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 30 2015

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-30119

              Plaintiff - Appellee,              D.C. No. 2:12-cr-00008-DLC-1

 v.
                                                 MEMORANDUM*
WAYNE ALAN PARTIN,

              Defendant - Appellant.


                  Appeal from the United States District Court
                           for the District of Montana
               Dana L. Christensen, Chief District Judge, Presiding

                       Argued and Submitted July 10, 2015
                                Portland, Oregon

Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

      Wayne Partin pled guilty to accessing with intent to view child pornography

in violation of 18 U.S.C. § 2252A(a)(5)(B). He appeals Special Condition 4 of his

ten years of supervised release, which forbids him from knowingly acquiring



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
materials that depict sexually explicit conduct as defined by 18 U.S.C.

§ 2256(2)(A). We have jurisdiction under 28 U.S.C. § 1291.

      We review a challenge to a supervised release condition for an abuse of

discretion. United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006). “[W]e give

considerable deference to a district court’s determination of the appropriate

supervised release conditions,” recognizing that “a district court has at its disposal

all of the evidence, its own impressions of a defendant, and wide latitude.” Id.

(internal quotation marks omitted).

      Although Special Condition 4 satisfied 18 U.S.C. § 3583(d)(1), the district

court did not have the benefit of United States v. Gnirke, 775 F.3d 1155, 1163-65

(9th Cir. 2015), when it rendered its decision in this case. Accordingly, we vacate

Special Condition 4 and remand for the district court to impose a condition

consistent with Gnirke.1

VACATED and REMANDED for further proceedings consistent with this
disposition.




      1
         Although Partin appeals only the first sentence of Special Condition 4 and
we find no error in the condition’s remaining provisions, we vacate the condition
in its entirety so the district court can consider it as a whole.

                                           2                                    14-30119
                                                                                 FILED
USA v Wanye Alan Partin 14-30119                                                 JUL 30 2015

                                                                             MOLLY C. DWYER, CLERK
N.R. Smith, Circuit Judge, dissenting:                                        U.S. COURT OF APPEALS



      We are compelled by binding circuit precedent to affirm. The challenged

condition in this case is not overbroad and does not deprive Partin of more liberty

than is reasonably necessary to effectuate the terms of supervised release. Our

recent decision in United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), does not

overrule this precedent and is not controlling in this case. Therefore, I respectfully

dissent.

      The special condition of supervised released imposed on Partin is a familiar

one. Indeed, as the district court noted when Partin objected to the imposition of

Special Condition 4, it was crafted to fit within the parameters of our case law. In

United States v. Rearden, 349 F.3d 608 (9th Cir. 2003), and United States v.

Daniels, 541 F.3d 915 (9th Cir. 2008), we upheld conditions of supervised release

that were identical to the special condition imposed on Partin in all material

respects. Those cases stand for the proposition that special conditions of

supervised release that define “sexually explicit conduct” by reference to 18 U.S.C.

§ 2256(2) do not restrict a defendant’s rights more than reasonably necessary to

effectuate the goals of supervised release and are not overbroad. See Rearden, 349

F.3d at 619–20; Daniels, 541 F.3d at 927. Rearden and Daniels remain good law

                                          1
in our circuit, as no en banc court has overruled them and there is no intervening

higher authority that calls them into question.

      The majority remands the case so that the district court can apply United

States v. Gnirke in the first instance. However, given our decisions squarely on

point in Rearden and Daniels, there is no need to apply Gnirke. As a decision of a

three-judge panel, the panel in Gnirke lacked the power to overrule Rearden and

Daniels and did not purport to do so. See Miller v. Gammie, 335 F.3d 889,

899–900 (9th Cir. 2003) (en banc). Accordingly, I would apply our binding

precedent and affirm.

      Although the majority does not opine as to how the district court should

apply Gnirke, I urge the district court to consider the limited nature of that case

when deciding whether to change the special condition. As already noted, Gnirke

did not purport to overturn Rearden and Daniels. Instead, the Gnirke court

distinguished the case before it on two grounds: (1) the district court’s stated intent

to limit the scope of Gnirke’s condition to adult pornography; and (2) the

geographic scope of the limitation, which would have prohibited Gnirke from

frequenting libraries or department stores. Gnirke, 775 F.3d at 1161–1164.

      We did not hold in Gnirke that a special condition of supervised release

barring possessing or viewing materials depicting sexually explicit conduct, as

                                           2
defined by § 2256(2), must be limited only to child or adult pornography. The

Gnirke court framed its discussion with the observation that “[t]he district court

clearly stated its intention to restrict Gnirke’s access to what it referred to as

‘pornography.’” Id. at 1161. The Gnirke court then engaged in a discussion of the

condition’s overbreadth, but summarized as follows: “The district court intended to

restrict Gnirke’s access to ‘child and adult pornography,’ but by applying the

definition in 18 U.S.C. § 2256(2) to depictions of adult sexual activity, the

condition deprives Gnirke of more liberty than is reasonably necessary.” Id. at

1166. The district court’s intent cannot be read out of Gnirke and plays a key role

in that case’s analysis of the condition. Gnirke’s holding follows from that intent:

a condition that reached beyond child and adult pornography would restrict more

liberty than was reasonably necessary if the district court did not conclude that

such a broad restriction was required to effectuate the goals of supervised release.

      The geographic scope of the condition also played a vital role in Gnirke’s

overbreadth analysis. The geographic scope was critical to distinguishing the case

from Rearden and Daniels. Id. at 1164. The risk that Gnirke would violate the

condition rose greatly with the addition of the overbroad geographic limitation,

heightening the dangers of overbreadth in the limitation on possessing and viewing

materials depicting sexually explicit conduct. Id. at 1165. There is no suggestion

                                            3
in Gnirke that the court would have held that it was necessary to rewrite the entire

condition if the geographic limitation were more circumscribed.

      When applying Gnirke, the district court should read the case in light of our

preexisting and still binding precedent in Rearden and Daniels. Gnirke must be

read to have distinguished those cases on some principle, and the grounds that I

have identified seem to me the best way to understand how Gnirke fits into our

jurisprudence on these difficult conditions.1 In light of the majority’s decision to

remand, it will be for the district court to determine whether Partin’s case is

distinguishable from Rearden and Daniels in light of Gnirke. Because I conclude

that Rearden and Daniels control, I respectfully dissent.




      1
       Gnirke also distinguished Rearden and Daniels on the basis that they were
decided on plain error review. Gnirke, 775 F.3d at 1164. Specifically, Gnirke
noted that the district courts in Daniels and Rearden did not have the benefit of
controlling circuit precedent at the time they imposed the conditions at issue. Id.
Regardless of whether Gnirke was correct in holding that the fact of plain error
review is a valid ground to distinguish prior precedent, we have controlling
precedent at issue here: Rearden and Daniels. The conclusion from those cases is
clear and unmistakable: defining sexually explicit conduct by reference to
§ 2256(2) does not render a special condition of supervised release categorically
overbroad. Gnirke could not overrule this conclusion, so it must be interpreted in a
way that preserves the binding rule.

                                           4
