                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 21 2012

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 11-30270

              Plaintiff - Appellee,              D.C. No. 4:03-cr-00004-SEH-1

  v.
                                                 MEMORANDUM*
JOHN LITTLE DOG,

              Defendant - Appellant.


                   Appeal from the United States District Court
                           for the District of Montana
                    Sam E. Haddon, District Judge, Presiding

                      Argued and Submitted August 28, 2012
                               Seattle, Washington

Before: SCHROEDER and GOULD, Circuit Judges, and FRIEDMAN, Senior
District Judge.**

       John Little Dog’s supervised release was revoked after he violated one of his

special conditions of release by possessing pornographic materials. He appeals his



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Paul L. Friedman, Senior District Judge for the U.S.
District Court for the District of Columbia, sitting by designation.
twelve-month revocation sentence as unreasonably lengthy. “[A] district court,

when revoking supervised release, has discretion to go outside the suggested

sentencing range of the policy statements up to the statutory maximum listed in 18

U.S.C. § 3583(e)(3).” United States v. Musa, 220 F.3d 1096, 1101 (9th Cir. 2000).

Sentences imposed upon revocation of supervised release are reviewed for

reasonableness, United States v. Simtob, 485 F.3d 1058, 1061 (9th Cir. 2007),

under an abuse of discretion standard, United States v. Carty, 520 F.3d 984, 993

(9th Cir. 2008) (en banc), even where, as here, the defendant did not object at

sentencing. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).

      The district court did not abuse its discretion by imposing a sentence above

the three-to-nine-month range recommended by Chapter 7 of the United States

Sentencing Guidelines. The court was within its discretion to conclude that Little

Dog’s repeated violations of his supervised release condition and his persistence

even after being censured by his probation officer for the first violation represented

“a serious breach of the trust that the court placed in [him],” warranting a three-

month upward departure from the Guidelines sentencing range.

      The district court also imposed the following special condition of supervised

release on Little Dog, similar to the original condition he violated:




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      The defendant shall not possess any materials depicting sexually explicit
      conduct as defined in 18 United States Code Section 2256(2)(a)(i)
      through (v), including visual, auditory, telephonic, or electronic media
      and computer programs or services. The defendant shall not patronize
      any place where such material or entertainment is available. The
      defendant further shall not utilize 900 or adult telephone numbers or any
      other sex-related numbers.

Little Dog contends that the prohibition on patronizing “any place” where sexually

explicit materials are “available” is unreasonably overbroad. Because Little Dog

objected to this condition at his revocation hearing, our review is for abuse of

discretion. United States v. Goddard, 537 F.3d 1087, 1089 (9th Cir. 2008). “We

review the language of the condition as it is written and cannot assume . . . that it

will be interpreted contrary to its plain language.” United States v. Cope, 527 F.3d

944, 958 (9th Cir. 2008) (quotation omitted); see also United States v. Guagliardo,

278 F.3d 868, 872 (9th Cir. 2002).

      In United States v. Bee, 162 F.3d 1232, 1234–35 (9th Cir. 1998), we upheld

a special condition of release nearly identical to that which Little Dog challenges,

but we addressed only the prohibition on possessing sexually explicit materials, not

the broader ban on patronizing any establishment where such materials are

available. Read literally, the latter prohibition bars Little Dog from any

convenience store, pharmacy, or bookstore that stocks pornographic magazines, as

well as from mainstream video stores and theaters featuring R-rated films. Indeed,


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the government concedes that Little Dog would be violating his supervised release

terms if he were to patronize a gas station where pornographic magazines are

available behind the counter. At least for an individual like Little Dog, who resides

in a small community where the choice of public establishments may be more

limited than elsewhere, a prohibition of this breadth entails “a greater deprivation

of liberty than is reasonably required to achieve deterrence, public protection, and

offender rehabilitation.” United States v. Blinkinsop, 606 F.3d 1110, 1119 (9th

Cir. 2010) (quotation omitted); see 18 U.S.C. § 3583(d)(2).

      Although we conclude that the challenged provision is overbroad, it is the

district court that must alter the conditions of a defendant’s supervised release.

Cope, 527 F.3d at 957. We direct the district court on remand to amend this

condition to clarify that the proscription does not extend to establishments with an

acceptable business purpose, such as grocery stores, convenience stores, and gas

stations. The district court may continue to prohibit Little Dog from patronizing

establishments where sexually explicit material is the primary business purpose,

such as adult bookstores and adult theaters.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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