                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 15 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-50076

                Plaintiff-Appellee,             D.C. No.
                                                3:13-cr-03109-LAB-1
 v.

ARMANDO MENDOZA-PERALTA,                        MEMORANDUM *

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                    Larry A. Burns, District Judge, Presiding

                             Submitted May 11, 2017**
                               Pasadena, California

Before: PREGERSON and FRIEDLAND, Circuit Judges, and DONATO,***
District Judge.

      Armando Mendoza-Peralta appeals for the second time his sentence for

receiving images of minors engaged in sexually explicit conduct in violation of 18


      *
             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 James Donato, United States District Judge for the
Northern District of California, sitting by designation.
U.S.C. § 2252(a)(2). We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C.

§ 1291, and we vacate in part and remand.

      1.     Mendoza-Peralta challenges a special condition of supervised release

restricting his access to certain materials depicting sexually explicit conduct

involving adults. Specifically, the condition prohibits him from possessing

“explicit sexually stimulating depictions of adult sexual conduct that he would

access via the internet,” but permits him to view such materials offline “as deemed

appropriate by his probation officer.” Mendoza-Peralta contends that the district

court committed both procedural and substantive errors in imposing that condition

and objects to discrepancies between the condition the district court imposed orally

at resentencing and the written judgment. To the extent the oral and written

conditions diverge, the district court’s unambiguous oral sentencing order controls.

See United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006). We accordingly

review that iteration of the condition.

      2.     The district court did not procedurally err by inadequately explaining

its imposition of the challenged condition or by basing that condition on clearly

erroneous facts.

      The oral condition limits Mendoza-Peralta’s ability to access only certain

pornographic materials—not literary, artistic or cultural depictions of nudity or sex

more generally. Because that restriction does not implicate a “particularly


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significant liberty interest,” the sentencing court was not required to comply with

heightened procedural requirements. United States v. Gnirke, 775 F.3d 1155,

1159-60 (9th Cir. 2015) (quoting United States v. Wolf Child, 699 F.3d 1082, 1090

(9th Cir. 2012)) (explaining that “access to pornography is clearly not a liberty

interest on par with such significant interests as” those that trigger heightened

procedural requirements). The court therefore only needed to provide an

explanation sufficient to “‘permit meaningful appellate review’ and

‘communicate[] that the parties’ arguments have been heard, and that a reasoned

decision has been made.’” Id. at 1159 (quoting United States v. Carty, 520 F.3d

984, 992 (9th Cir. 2008) (en banc)).

      Here, the district court did so by explaining that the challenged condition

was intended to avoid the risk that viewing adult pornography would lead

Mendoza-Peralta to reoffend. Such discussion makes clear that the court believed

the condition was reasonably necessary, in light of “the nature and circumstances

of the offense and the history and characteristics of the defendant,” to “protect the

public from further crimes of the defendant.” See 18 U.S.C. § 3553(a)(1), (2); 18

U.S.C. § 3583(d)(1). That conclusion was neither illogical nor implausible, and

the district court appropriately relied on its experience sentencing similar offenders

in reaching that determination. See United States v. Autery, 555 F.3d 864, 875 (9th

Cir. 2009).


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      3.     The district court did not substantively err. We previously remanded

for the district court to clarify the scope of the challenged condition, United States

v. Mendoza-Peralta, 624 F. App’x 456, 458 (9th Cir. 2015) (unpublished)

(Mendoza-Peralta I), and the court did so. At resentencing, the district court

reaffirmed its intent to restrict only Mendoza-Peralta’s ability to access certain

pornographic materials and imposed a modified special condition that closely

tracks language from United States v. Gnirke, 775 F.3d 1155 (9th Cir. 2015), that

we cited approvingly in Mendoza-Peralta I. Gnirke controls our analysis and

compels the conclusion that the district court did not abuse its discretion in

imposing the challenged condition.

      4.     Although the district court did not err in imposing the oral sentencing

order, we are concerned that confusion might arise from the discrepancies between

that oral ruling and the written judgment, particularly given the length of Mendoza-

Peralta’s term of supervised release. We therefore vacate the written judgment to

the extent that it conflicts with the oral condition and remand for the limited

purpose of allowing the court to conform the judgment to its prior oral sentence.

      VACATED IN PART AND REMANDED.




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