                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 22 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-10150

              Plaintiff - Appellee,               D.C. No. 2:09-cr-00131-DGC-1

  v.
                                                  MEMORANDUM *
RICHARD DAVIS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    David G. Campbell, District Judge, Presiding

                          Submitted December 19, 2011 **

Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

       Richard Davis appeals from the sentence – 180 months in prison and

supervised release for life – imposed following his guilty plea to one count of

transporting child pornography in violation of 18 U.S.C. § 2252A(a)(1). Davis

argues that the district court erred in imposing a lifetime sentence, in sentencing

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
him to treatment that could include plethysmograph testing and ABEL Assessment,

and in delegating the decision of whether to require physiological testing to the

probation officer by directing the officer to select a sex offender treatment program

for Davis to attend. We have jurisdiction under 28 U.S.C. § 1291. We affirm and

remand to the district court to correct the written judgment to comport with the oral

pronouncement of the sentence.

      Whether a defendant has waived the right to appeal is a question of law

reviewed de novo. United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009). In

his plea agreement, Davis waived “any right to appeal the . . . sentence” imposed

upon him, including the terms of supervised release. See id. at 986 (reference to

“‘any aspect of the sentence’ unambiguously encompasse[s] supervised release

terms”).

      In arguing that he may nevertheless appeal the orally imposed conditions,

Davis argues that because the district court did not specifically articulate its

reasons for imposing the supervised release sentence, the sentence violates the

terms of the plea agreement. It does not. Neither the plea agreement nor the law

requires an explanation of why a lifetime term of supervised release or sex

offender treatment including ABEL Assessment was appropriate, after the

extensive justification of the prison sentence applying the same factors and the


                                            2
presentence investigation report’s treatment of the issue. See 18 U.S.C.

§§ 3583(c), (d)(1); United States v. Daniels, 541 F.3d 915, 921–22 (9th Cir. 2008);

see also United States v. Esparza, 552 F.3d 1088, 1090 n.3 (9th Cir. 2009) (per

curiam).

       Davis’s contention that the probation officer’s ability to enforce the sentence

imposed by the district court implicates a significant liberty interest is without

merit. See Daniels, 541 F.3d at 926 (“‘Abel testing does not implicate a

particularly significant liberty interest’”).

       The government concedes that the oral pronouncement, which does not

provide for plethysmograph testing, conflicts with the written judgment, which

does, and therefore, the term must be stricken. We remand to the district court to

correct its written judgment accordingly. See United States v. Hicks, 997 F.2d 594,

597 (9th Cir. 1993).

       AFFIRMED and REMANDED with direction to correct the written

judgment to conform to the oral sentence.




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