                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 20 2014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. 12-10627

              Plaintiff - Appellee,              D.C. No. 1:10-cr-00304-AWI-1

  v.
                                                 MEMORANDUM*
ERIC RODRIGUEZ,

              Defendant - Appellant.


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

                          Submitted February 10, 2014**
                            San Francisco, California

Before: TALLMAN and RAWLINSON, Circuit Judges, and RICE, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Thomas O. Rice, United States District Judge for the
Eastern District of Washington, sitting by designation.
      Appellant Eric Rodriguez (“Rodriguez”) appeals his sentence and two

conditions of supervised release imposed by the district court following his guilty

plea to receipt or distribution of child pornography in violation of 18 U.S.C.

§ 2252(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742(a). We affirm.

      The district court did not abuse its discretion in imposing Rodriguez’s

97-month sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). This

below-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.

§ 3553(a) sentencing factors and the totality of the circumstances. See id.

      The district court did not abuse its discretion in granting Rodriguez an

11-month downward variance in order to avoid an unwarranted sentencing

disparity between similarly situated offenders. The district court considered

Rodriguez’s request for an even greater downward variance, but found that

Rodriguez’s circumstances were “not necessarily exceptional” in relation to those

of other offenders whom the district court had previously sentenced for similar

conduct. We find no abuse of discretion in that determination.

      Special Condition 7 provides that Rodriguez “shall have no contact with

children under the age of 18 unless approved by the probation officer in advance.”

The parties ask us to vacate and remand pursuant to United States v. Preston, 706


                                          2
F.3d 1106, 1123 (9th Cir. 2013), in which we held that a condition of supervised

release prohibiting contact with “children under the age of 18” was

unconstitutionally vague. While this appeal was pending, we voted to take the

Preston case en banc and ordered that the three-judge panel opinion not be cited as

precedent. See United States v. Preston, 727 F.3d 894 (9th Cir. 2013) (order

granting rehearing en banc). We find no basis for remand in any other decision.

Since Rodriguez does not have young children, his fundamental right of familial

association is not implicated. Cf. United States v. Wolf Child, 699 F.3d 1082,

1092-95 (9th Cir. 2012). Accordingly, the district court was not required to

specifically support its decision to impose this condition. Nor does this condition

violate Rodriguez’s right to due process for lack of a mens rea element. As we

noted in Wolf Child, we presume that conditions of supervised release require a

knowing violation. Id. at 1100 n.9; see also United States v. Vega, 545 F.3d 743,

750 (9th Cir. 2008) (construing prohibition on contact with gang members

“consistent with well-established jurisprudence under which we presume

prohibited criminal acts require an element of mens rea”). The district court did

not plainly err in imposing this condition.

      Both parties assert that Special Condition 9, which prohibits Rodriguez from

“frequent[ing] places with material depicting and/or describing sexually explicit


                                          3
conduct,” is overbroad in that it deprives Rodriguez of more liberty than is

reasonably necessary to fulfill the goals of his supervised release. See United

States v. Goddard, 537 F.3d 1087, 1089-90 (9th Cir. 2008). Assuming arguendo

that the condition is overbroad, Rodriguez has failed to establish plain error. Plain

error requires “(1) error, (2) that is plain, and (3) that affects substantial rights.”

United States v. Cotton, 535 U.S. 625, 631 (2002) (internal quotation marks and

alteration omitted). “If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.” Id.

(alterations omitted). In the exercise of our discretion, we decline the parties’

invitation to remand. Plain error review must be applied in a manner that promotes

the underlying purposes of Federal Rule of Criminal Procedure 52(b)—to

“encourage timely objections and reduce wasteful reversals” necessitated by

unpreserved errors. United States v. Domingez Benitez, 542 U.S. 74, 82 (2004).

Remand for modification of Special Condition 9 would not serve those purposes.

In reaching this conclusion, we are mindful that Rodriguez remains free to pursue a

modification of this condition in the district court pursuant to 18 U.S.C.

§ 3583(e)(2).

       AFFIRMED.


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