                                                                           FILED
                            NOT FOR PUBLICATION                            NOV 26 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-10523

               Plaintiff - Appellee,             D.C. No. 2:08-cr-00085-FCD

  v.
                                                 MEMORANDUM*
DANIEL JAMES O’NEIL, Jr.,

               Defendant - Appellant.


                    Appeal from the United States District Court
                        for the Eastern District of California
                   Frank C. Damrell, Jr., District Judge, Presiding

                           Submitted November 19, 2013**

Before:        CANBY, TROTT, and THOMAS, Circuit Judges.

       Daniel James O’Neil, Jr., appeals from the district court’s judgment and

challenges the 78-month sentence and several conditions of supervised release

imposed following his guilty-plea conviction for possession of one or more matters



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
containing a depiction of minors engaged in sexually explicit conduct, in violation

of 18 U.S.C. § 2252(a)(4)(B). We dismiss in part and vacate and remand in part.

      The government argues that this appeal is barred by an appeal waiver in the

parties’ plea agreement. We review de novo whether a defendant has waived his

right to appeal. See United States v. Watson, 582 F.3d 974, 981 (9th Cir. 2009).

      O’Neil’s contention that the government waived its right to assert the appeal

waiver fails because the government raised the appeal waiver in its answering

brief. See United States v. McEnry, 659 F.3d 893, 902 (9th Cir. 2011). O’Neil’s

contention that the appeal waiver does not encompass the supervised release

conditions is also without merit. See Watson, 582 F.3d at 986 (waiver of right to

appeal “any aspect” of the sentence unambiguously includes conditions of

supervised release).

      O’Neil also argues that the appeal waiver is unenforceable because his

sentence is unconstitutional in that it was based on erroneous and inaccurate facts.

We disagree. The record reflects that O’Neil was sentenced consistently with the

requirements of due process. See United States v. Vanderwerfhorst, 576 F.3d 929,

935-36 (9th Cir. 2009) (to establish due process violation at sentencing, defendant

must show that his sentence was “demonstrably” based on false or unreliable

information).


                                          2                                    10-10523
      Finally, O’Neil contends that special condition of supervision number eight

violates his fundamental right to procreate and raise children. Because the record

suggests that the district court did not intend for special condition of supervision

number eight to apply to O’Neil’s children, we adopt a narrowing construction of

that condition to exempt his children, thereby ensuring that the condition does not

impinge on his fundamental right to familial association. See United States v. Wolf

Child, 699 F.3d 1082, 1095 n.3 (9th Cir. 2012). We remand to the district court

with instructions to modify the condition to conform to our narrow construction.

      We dismiss the remainder of the appeal as barred by the appeal waiver.

      DISMISSED in part; VACATED in part and REMANDED with

instructions.




                                           3                                    10-10523
