                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            APR 11 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 16-10484

              Plaintiff-Appellee,                D.C. No.
                                                 3:15-cr-00043-MMD-WGC-1
 v.

PHILLIP BRADLEY SANDERSON,                       MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Miranda M. Du, District Judge, Presiding

                       Argued and Submitted March 14, 2018
                            San Francisco, California

Before: FERNANDEZ, McKEOWN, and FUENTES,** Circuit Judges.

      Phillip Bradley Sanderson appeals a sentence of lifetime supervised release

and several special conditions of supervised release imposed by the district court

after he pleaded guilty to receipt of child pornography in violation of 18 U.S.C. §


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Julio M. Fuentes, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
2252A(a)(2) and (b). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742. We affirm in part, vacate in part, and remand.

                                 1. Expert Testimony

      Sanderson contends that the district court violated his due process rights by

considering unreliable expert testimony regarding his risk to reoffend in imposing

lifetime supervised release. To succeed on this claim, Sanderson must establish

that the testimony “is (1) false or unreliable, and (2) demonstrably made the basis

for the sentence.” United States v. Vanderwerfhorst, 576 F.3d 929, 935–36 (9th

Cir. 2009) (citation and quotation marks omitted). Here, even assuming that

Sanderson met the first prong, his challenge still fails because the district court

clearly stated that it would have imposed lifetime supervision without the expert

testimony. See United States v. Gonzales, 765 F.2d 1393, 1397 (9th Cir. 1985)

(noting that we “take such statements at face value”).

                            2. Lifetime Supervised Release

      Sanderson next argues that a sentence of lifetime supervised release is

substantively unreasonable in light of his age, lack of criminal history, supportive

family, and commitment to rehabilitation. The substantive reasonableness of a

sentence is reviewed for abuse of discretion. United States v. Autery, 555 F.3d

864, 871 (9th Cir. 2009).


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      Here, the district court carefully weighed the factors set forth in 18 U.S.C. §

3553(a) in imposing lifetime supervision. Indeed, as the district court found,

lifetime supervision is reasonable in view of the nature of Sanderson’s crime, the

length and depth of his addiction, and the need to protect the community once he

leaves prison. As such, we affirm the sentence of lifetime supervised release.

                         3. Supervised Release Conditions

      Sanderson finally asserts that the district court erred in imposing certain

conditions of supervised release as part of his sentence. “We generally review

conditions of supervised release for abuse of discretion, but we review de novo

claims that such conditions violate the Constitution.” United States v. Evans, 883

F.3d 1154, 1159–60 (9th Cir. 2018).

      Sanderson contends that the association condition is vague and overbroad

because it captures incidental and unknowing contact with minors. This argument

fails. We have held that “incidental contacts,” such as those Sanderson fears he

would be punished for, “do not constitute association.” United States v. Soltero,

510 F.3d 858, 866–67 (9th Cir. 2007) (citation and quotation marks omitted). We

further construe this condition “consistent with well-established jurisprudence

under which we presume prohibited criminal acts require an element of mens rea.”

United States v. Vega, 545 F.3d 743, 750 (9th Cir. 2008). “Properly construed,


                                          3
then, the condition regulates only knowing contact” with minors. United States v.

Napulou, 593 F.3d 1041, 1045 (9th Cir. 2010) (emphasis in original). Therefore,

the association condition is not vague or overbroad.

      However, the association condition implicates Sanderson’s “particularly

significant liberty interest” in procreating and associating with any children he may

have in the future. United States v. Wolf Child, 699 F.3d 1082, 1092 (9th Cir.

2012). Accordingly, before imposing the condition, the district court was

“required to follow an enhanced procedural requirement to make special findings

on the record supported by evidence in the record, that the condition is necessary

for deterrence, protection of the public, or rehabilitation, and that it involves no

greater deprivation of liberty than reasonably necessary.” Id. at 1087. Because the

district court did not do so, we vacate and remand the association condition for the

district court to make the necessary findings or, if it cannot, to narrow the

condition appropriately.

      Sanderson next maintains that the phrase “caters to” in the occupation

condition is vague. We agree. While the record clearly supports an occupational

restriction, Sanderson “cannot be left to guess about the intended meaning of the

terms of his supervised release.” United States v. Sales, 476 F.3d 732, 737 (9th




                                            4
Cir. 2007). As such, we remand for the district court to rewrite the occupation

condition to clarify where Sanderson can seek employment.

      Sanderson further argues that the term “loiter” and the phrase “primarily

used by children” in the loitering condition are vague and overbroad. However,

this language is not “so vague that men of common intelligence must necessarily

guess at its meaning and differ as to its application.” Evans, 883 F.3d at 1160

(citation and quotation marks omitted). Thus, we affirm the loitering condition.

      Sanderson similarly challenges the residency condition as vague and

overbroad. Contrary to Sanderson’s arguments, the phrase “direct view” is not

vague. See id. However, this condition is overbroad because it could prevent

Sanderson from living within sight of places primarily used by children, even if he

is so far away that he cannot see them. On appeal, the Government argues that the

condition should be read to prevent Sanderson from living within direct view of

places primarily used by children only if he can actually see children from that

location. While this interpretation solves the condition’s overbreadth problem, it is

contrary to its plain language. See United States v. Cope, 527 F.3d 944, 958 (9th

Cir. 2008) (“We . . . cannot assume, as the government seems to suggest, that [a

condition] will be interpreted contrary to its plain language.” (citation and




                                           5
quotation marks omitted)). Thus, we remand for the district court to rewrite the

residency condition to comply with the Government’s interpretation.

      Sanderson also contends that condition 7’s use of 18 U.S.C. § 2256(2) to

define the term “pornographic” runs afoul of United States v. Gnirke, 775 F.3d

1155 (9th Cir. 2015). We agree. The district court stated that condition 7 was

intended to only prohibit Sanderson from possessing child and adult pornography.

However, like the condition in Gnirke, condition 7—as written—captures non-

pornographic depictions of adult sexual conduct. Accordingly, we vacate and

remand for the district court to impose condition 7 consistent with Gnirke.

      Sanderson further maintains that condition 4’s prohibition on viewing or

reading materials “describing ‘sexually explicit conduct’ involving children, as

defined by 18 U.S.C. § 2256(2)” violates his First Amendment rights.1 However,

we upheld similar restrictions in United States v. Daniels, 541 F.3d 915, 927–28

(9th Cir. 2008), and United States v. Rearden, 349 F.3d 608, 619–20 (9th Cir.

2003). While Sanderson asserts that Daniels and Rearden are distinguishable

because the conditions in those cases were reviewed for plain error, condition 4

also withstands abuse of discretion review in light of the goals of Sanderson’s



      1
       To the extent that Sanderson argues otherwise, the term “describing” in
condition 4 is not unconstitutionally vague.
                                          6
rehabilitation and public safety. See United States v. Bee, 162 F.3d 1232, 1234–35

(9th Cir. 1998). For substantially the same reasons, we also affirm condition 7’s

prohibition on possessing matter that “depicts, suggests, or alludes to sexual

activity of minors under the age of eighteen (18).”

      AFFIRMED in part, VACATED in part and REMANDED.




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