                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 17 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-30147

              Plaintiff - Appellee,              D.C. No. 9:14-cr-00027-DLC-1

 v.
                                                 MEMORANDUM*
JOHN MERCHBERGER, III,

              Defendant - Appellant.


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

                        Argued and Submitted June 6, 2016
                               Seattle, Washington

Before: PAEZ and BYBEE, Circuit Judges and TIGAR,** District Judge.

      Defendant-Appellant John Merchberger, III, appeals the imposition of two

conditions on his lifetime supervised release. This Court reviews the district

court’s imposition of a supervised release condition for abuse of discretion. United


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jon S. Tigar, District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
States v. Wolf Child, 699 F.3d 1082, 1089 (9th Cir. 2012). “In applying this

standard of review, we 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.” United States v. Stoterau, 524 F.3d 988, 1002 (9th

Cir. 2008) (internal quotation marks omitted). We have jurisdiction under 28

U.S.C. § 1291 and affirm.

      First, the district court did not abuse its discretion by imposing Condition 8

on Merchberger, which limits his access to “any materials depicting sexually

explicit conduct as defined in 18 U.S.C. § 2256(2)(A), if the materials, taken as a

whole, are primarily designed to arouse sexual desire.” This condition reasonably

limits Merchberger’s access to sexually explicit material while ensuring that his

First Amendment right to access protected speech is not restricted more than

reasonably necessary. See United States v. Gnirke, 775 F.3d 1155, 1166 (9th Cir.

2015) (approving of a condition that limited access 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 Gnirke’s probation officer”).




                                            2
      Second, the district court did not abuse its discretion by imposing Condition

10 on Merchberger, which limits his access to computers or other devices

connected to the internet without the prior approval of his probation officer. At

oral argument, Merchberger’s counsel clarified that he challenges this condition

based on its limitation of Merchberger’s access to the internet rather than

computers more generally. However, our case law makes clear that such

limitations are not an abuse of discretion. See United States v. Quinzon, 643 F.3d

1266, 1272–73 (9th Cir. 2011); United States v. Goddard, 537 F.3d 1087, 1091

(9th Cir. 2008); United States v. Rearden, 349 F.3d 608, 620–21 (9th Cir. 2003).

      Our decision in United States v. Riley, 576 F.3d 1046, 1049–50 (9th Cir.

2009), does not assist Merchberger. In Riley, we struck down a lifetime

supervision condition that completely banned the defendant from certain categories

of internet content, regardless of whether his probation officer approved of his

access. See id. at 1049. Here, by contrast, the condition only requires

Merchberger to obtain prior approval from his probation officer, a situation we

explicitly contrasted in Riley. See id.

      AFFIRMED.




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