                                                                           FILED
                           NOT FOR PUBLICATION                             MAY 20 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-10294

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00165-AWI-1

  v.
                                                 MEMORANDUM*
ALBERT GARZA,

              Defendant - Appellant.


                   Appeal from the United States District Court
                       for the Eastern District of California
                 Anthony W. Ishii, Senior District Judge, Presiding

                      Argued and Submitted January 14, 2014
                            San Francisco, California

Before: TALLMAN and IKUTA, Circuit Judges, and O’CONNELL, District
Judge.**

       Albert Garza appeals his conviction and sentence on child pornography

charges. In a concurrently filed opinion we address his competency argument.

Here, we address his remaining challenges:

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
        **
             The Honorable Beverly Reid O’Connell, United States District Judge
for the Central District of California, sitting by designation.
      The district court did not plainly err by entering judgment on both counts of

his conviction in violation of the Double Jeopardy Clause. This case is materially

indistinguishable from United States v. Teague, 722 F.3d 1187, 1192 (9th Cir.

2013). Because we reject this challenge to Garza’s conviction, we also reject the

dependent challenge to Garza’s sentence.

      Nor did the district court plainly err by awarding Garza a two-level

“distribution” enhancement under § 2G2.2(b)(3)(F) or by not giving Garza a

two-level reduction under § 2G2.2(b)(1) for, essentially, not distributing. A district

court can’t commit plain error when there is no binding precedent to guide it and

the circuits are split. United States v. Olano, 507 U.S. 725, 734 (1993). Garza

admits that there was1 no binding precedent on this issue and that the circuits are

split. Accordingly, Garza can’t show plain error.

      Finally, we accept one of Garza’s challenges to special condition of

supervised release #7. Garza argues that the condition’s use of the phrase

“sexually explicit” makes it overbroad. We rejected this argument in United States

v. Daniels, 541 F.3d 915, 927 (9th Cir. 2008), and we reject it again here. Garza

also argues that the condition’s use of the word “frequent” makes it overbroad.



      1
        We have since decided the relevant point adversely to Garza’s position.
See United States v. Vallejos, 742 F.3d 902 (9th Cir. 2014).

                                           2
He’s right. Conditions of supervised release are permissible only if they “involve

no greater deprivation of liberty than is reasonably necessary for the purposes of

supervised release.” United States v. Goddard, 537 F.3d 1087, 1089 (9th Cir.

2008). Because special condition #7 would prohibit Garza from visiting any gas

station or grocery store that sold adult magazines, it’s impermissibly overbroad.

      Accordingly, we vacate only the judgment as it pertains to supervised

release and remand with instructions that special condition #7 be modified.

      AFFIRMED in part, VACATED in part, and REMANDED.




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