                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           DEC 24 2015
UNITED STATES OF AMERICA,                        No. 14-30239           MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


              Plaintiff - Appellee,              D.C. No. 9:13-cr-00030-DWM-5

 v.
                                                 MEMORANDUM*
TONY BRONSON,

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 14-30240

              Plaintiff - Appellee,              D.C. No. 9:14-cr-00019-DWM-1

 v.

TONY BRONSON,

              Defendant - Appellant.


                  Appeal from the United States District Court
                          for the District of Montana
                Donald W. Molloy, Senior District Judge, Presiding

                     Argued and Submitted December 8, 2015

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
                                 Seattle, Washington

Before: McKEOWN and TALLMAN, Circuit Judges and GLEASON,** District
Judge.

      Tony Bronson appeals his sentence following his conviction by guilty plea

to two counts of conspiracy to advertise child pornography in violation of

18 U.S.C. § 2251(d) and (e). Bronson concedes that he knowingly and voluntarily

waived “any right to appeal his sentence.” However, Bronson argues that his

appeal waiver does not apply because his sentence “violates the law.” United

States v. Watson, 582 F.3d 974, 987 (9th Cir. 2009). We have jurisdiction under

28 U.S.C. § 1291, hold the illegality exception does not apply to invalidate

Bronson’s appeal waiver, and dismiss the appeal.

      1. The challenged special condition of supervised release is not

unconstitutionally vague. The special condition, which prohibits Bronson from

knowingly producing, possessing, or viewing “a visual depiction of any kind,

including a drawing, cartoon, sculpture, or painting” that: (1) “depicts a minor

engaging in sexually explicit conduct, as defined in 18 U.S.C. § 2256(2)(A)(I)-(v),

(5), (8), (9) and (10),” and (2) “is obscene, as defined in Miller v. California, 413

U.S. 15 (1973),” gives Bronson “fair notice of what is prohibited” and is not “so

       **
              The Honorable Sharon L. Gleason, U.S. District Judge for the District
of Alaska, sitting by designation.

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standardless that it authorizes or encourages seriously discriminatory

enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008) (citation

omitted).

      The condition “is limited to the prohibition of obscene material and thus

employs the same Miller requirements that the Supreme Court has already deemed

valid.” United States v. Schales, 546 F.3d 965, 973 (9th Cir. 2008); see also

United States v. Guagliardo, 278 F.3d 868, 872 (9th Cir. 2002) (noting that

obscenity has a “recognized legal definition”). Therefore, Bronson is on fair notice

that he will violate his supervised release if he draws an obscene picture of a minor

engaging in sexually explicit conduct. See Williams, 553 U.S. at 304 (“[P]erfect

clarity and precise guidance have never been required even of regulations that

restrict expressive activity.”) (citation omitted).

      2. The district court did not unconstitutionally delegate its judicial authority

to the United States probation officer, because it is the court which properly

decides the “nature [and] extent of the punishment imposed upon [Bronson].”

United States v. Stephens, 424 F.3d 876, 881 (9th Cir. 2005) (citation omitted).

While Bronson’s probation officer will “have some degree of discretion to decide

which materials the condition restricts” and will bring alleged violations of the

special condition to the district court’s attention, Bronson’s probation officer will

                                            3
not usurp the role of the judiciary. See United States v. Gnirke, 775 F.3d 1155,

1166 (9th Cir. 2015); see also United States v. Bee, 162 F.3d 1232, 1234–35 (9th

Cir. 1998). Ultimately, the court will determine whether Bronson has violated his

supervised release when a properly supported revocation petition is lodged by the

probation officer, and if sustained, how best to address the violation. See United

States v. Soltero, 510 F.3d 858, 864 n.6 (9th Cir. 2007). In sum, Bronson’s

punishment will be “within the hands of the court at the time of the hearing on

violations of the conditions of supervised release.” Id.

      Because Bronson’s sentence does not “violate the law,” we enforce the

appellate waiver.

      DISMISSED.




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