                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            FEB 15 2011

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


                            FOR THE NINTH CIRCUIT

 UNITED STATES OF AMERICA,                     No. 10-30037

                      Plaintiff - Appellee,    D.C. No. CR-08-126-BLG-RFC

                                                                    *
   vs.                                         MEMORANDUM

 JOSEPH EMORY ANTHONY,

                   Defendant - Appellant.



                     Appeal from the United States District Court
                             for the District of Montana
                     Richard F. Cebull, District Judge, Presiding

                            Submitted January 10, 2011 **
                               Seattle, Washington

Before: GRABER and M. SMITH, Circuit Judges, and BENITEZ,*** District
Judge.

         Defendant Joseph Emory Anthony appeals the 235-month custodial sentence

and conditions of supervised release imposed for Possession of Child Pornography,


         *
        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. Fed. R. App. P. 34(a)(2).
         ***
         The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
in violation of 18 U.S.C. § 2252A(a)(5)(b). We have jurisdiction over the matter

pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We vacate two special

conditions of supervised release and remand for reimposition of conditions but

affirm the sentence in all other respects.

      Anthony contends that the government breached the plea agreement by not

recommending a lower sentence. However, the district court rejected the plea

agreement at the outset of the sentencing hearing. Before counsel for the

government spoke, the court announced that the plea agreement was being rejected

and notified Anthony that the sentencing range contained in the plea agreement

was too lenient. Following the requirements of Federal Rule of Criminal

Procedure 11(c)(5), the court then gave Anthony the opportunity to withdraw his

guilty plea. When Anthony decided to persist in his guilty plea, the government

was no longer bound by the rejected plea agreement. See United States v.

Kuchinski, 469 F.3d 853, 858 (9th Cir. 2006). Therefore, there was no breach of

the plea agreement.

      Anthony contends that his 235-month sentence is substantively

unreasonable. When reviewing a sentencing decision, we first review the

determination for procedural error, and then address the substantive reasonableness

of a sentence. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).



                                             2
Here, the sentencing court began by resolving objections to the pre-sentence report

and correctly calculating the Sentencing Guidelines range. It then addressed the

facts of the case and explained the sentence selected based on the sentencing

factors listed in 18 U.S.C. § 3553(a). There was no procedural error.

      The sentence was within the correctly calculated Sentencing Guidelines

range and below the statutory maximum sentence of twenty years. “[W]hen the

judge’s discretionary decision accords with the [Sentencing] Commission’s view

of the appropriate application of § 3553(a) in the mine run of cases, it is probable

that the sentence is reasonable.” Rita v. United States, 551 U.S. 338, 351 (2007);

see Carty, 520 F.3d at 994 (adopting this standard). In light of the totality of the

circumstances, given the sentencing court’s thorough explanation of the sentencing

factors and the danger Anthony posed to the community, we cannot say that the

sentence was substantively unreasonable. United States v. Blinkinsop, 606 F.3d

1110, 1116 (9th Cir. 2010).

      Lastly, Anthony challenges as overbroad two special conditions of his

supervised release. Special Condition No. 7 prohibits possession and use of any

computer or electronic device that can provide access to the internet. The

government concedes that this condition is overbroad in light of United States v.

Riley, 576 F.3d 1046, 1050 (9th Cir. 2009), and we agree.



                                           3
      Special Condition No. 15 is likewise overbroad and requires Anthony to

abstain from consuming or possessing alcohol and to avoid establishments where

alcohol is the primary item of sale. Alcohol played no part in the offense of

conviction and the nexus is slight between Anthony’s possession of alcohol and his

past criminal conduct. Given the facts in the record, Special Condition No. 15 is

not narrowly tailored and imposes a greater deprivation of liberty than is

reasonably necessary for the purposes of supervised release described in 18 U.S.C.

§ 3583(d). Riley, 576 F.3d at 1048.

      Conditions of release VACATED and REMANDED for reimposition of

special conditions of release. AFFIRMED in all other respects.




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