                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 22 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 15-30192

              Plaintiff - Appellee,               D.C. No. 9:14-cr-00027-DLC-4

 v.
                                                  MEMORANDUM*
TONY LEE GUSTAFSON

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Montana
                Dana L. Christensen, Chief District Judge, Presiding

                        Argued and Submitted June 6, 2016
                               Seattle, Washington

Before: PAEZ and BYBEE, Circuit Judges and TIGAR,** District Judge.

      Defendant-Appellant Tony Lee Gustafson appeals the imposition of lifetime

supervised release as well as two conditions of his supervision. We have

jurisdiction under 28 U.S.C. § 1291 and affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jon S. Tigar, District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
      First, Gustafson challenges the district court’s decision to sentence him to

lifetime supervised release. The government contends, and Gustafson does not

dispute, that Gustafson did not raise his objections to lifetime supervised release

before the district court, and therefore that the proper standard of review is for

plain error. We therefore consider whether Gustafson has shown “(1) error, (2)

that is plain, and (3) that affects substantial rights.” United States v.

Vanderwerfhorst, 576 F.3d 929, 934 (9th Cir. 2009).

      Gustafson argues that the district court relied on “false or unreliable

information” in imposing his sentence, Vanderwerfhorst, 576 F.3d at 935, because

it considered the absence of a psychosexual report as evidence of Gustafson’s risk

of reoffense. In fact, the district court explicitly stated that “I am not attaching

anything to the lack of a psychosocial evaluation,” and further identified several

factors that it believed indicated a risk to reoffend, including the nature of

Gustafson’s child pornography collection and his history of violations.

      Gustafson also argues that the district court violated 18 U.S.C. § 3553(a)(6)

by failing to consider the statutory factor of “the need to avoid unwarranted

sentence disparities among defendants with similar records who have been found

guilty of similar conduct.” We have previously held that this factor is only one of

many that a district court should consider during sentencing. United States v.


                                            2
Marcial-Santiago, 447 F.3d 715, 719 (9th Cir. 2006) (“Even if this disparity were

assumed to be unwarranted, however, that factor alone would not render

Appellants’ sentences unreasonable; the need to avoid unwarranted sentencing

disparities is only one factor a district court is to consider in imposing a

sentence.”). Here, the district court carefully reviewed the statutory factors defined

by 18 U.S.C. § 3553(a), including whether Gustafson’s sentence was disparate, and

concluded that lifetime supervision was appropriate. We find no error in the

district court’s determination.

      Second, Gustafson challenges two conditions of his lifetime supervised

release. We review the district court’s imposition of a supervised release condition

for abuse of discretion. United States v. Wolf Child, 699 F.3d 1082, 1089 (9th Cir.

2012). “In applying this standard of review, we give considerable deference to a

district court’s determination of the appropriate supervised release conditions,

recognizing that a district court has at its disposal all of the evidence, its own

impressions of a defendant, and wide latitude.” United States v. Stoterau, 524 F.3d

988, 1002 (9th Cir. 2008) (internal quotation marks omitted).

      The district court did not abuse its discretion by imposing Condition 11 on

Gustafson, which limits his access to “any materials depicting sexually explicit

conduct as defined in 18 U.S.C. § 2256(2)(A), if the materials taken as a whole, are


                                            3
primarily designed to arouse sexual desire.” This condition reasonably limits

Gustafson’s access to sexually explicit material while ensuring that his First

Amendment right to access protected speech is not restricted more than reasonably

necessary. See United States v. Gnirke, 775 F.3d 1155, 1166 (9th Cir. 2015)

(approving of a condition that limited access to “any materials with depictions of

‘sexually explicit conduct’ involving adults, defined as explicit sexually

stimulating depictions of adult sexual conduct that are deemed inappropriate by

Gnirke’s probation officer”).

      Second, the district court did not abuse its discretion by imposing Condition

13 on Gustafson, which limits his access to computers or other devices connected

to the internet without the prior approval of his probation officer. At oral

argument, counsel clarified that the defendant challenges this condition based on

its limitation of his access to the internet rather than computers more generally.

However, our case law makes clear that such limitations are not an abuse of

discretion. See United States v. Quinzon, 643 F.3d 1266, 1272–73 (9th Cir. 2011);

United States v. Goddard, 537 F.3d 1087, 1091 (9th Cir. 2008); United States v.

Rearden, 349 F.3d 608, 620–21 (9th Cir. 2003).

      Our decision in United States v. Riley, 576 F.3d 1046, 1049–50 (9th Cir.

2009), does not assist Gustafson. In Riley, we struck down a lifetime supervision


                                           4
condition that completely banned the defendant from certain categories of internet

content, regardless of whether his probation office approved of his access. See id.

at 1049. Here, by contrast, the condition only requires Gustafson to obtain prior

approval from his probation officer, a situation we explicitly contrasted in Riley.

See id.

      AFFIRMED.




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