                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 24 2011

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




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 10-30219

              Plaintiff - Appellee,               D.C. No. 2:05-cr-00085-RSM-1

  v.
                                                  MEMORANDUM *
DOUGLAS SPINK,

              Defendant - Appellant.



                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                         Argued and Submitted May 2, 2011
                                Seattle, Washington

Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

       Douglas Spink, who pled guilty to drug trafficking, challenges various

components of his evidentiary hearing and sentencing for violating the conditions

of his supervised release. Specifically, Spink challenges the district court’s (1)

denial of his motion to exclude evidence related to the internet; (2) reliance on



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
internet-related evidence when fashioning his sentence; (3) imposition of a

36-month sentence of incarceration and two additional years of supervised release;

(4) imposition of additional supervised release conditions relating to computer use;

(5) determination that Spink violated his supervised release conditions by

committing a new crime under the Washington statute about animal cruelty; and

(6) denial of his post-judgment motion to return seized property. We affirm.

      1.     The district court’s denial of Spink’s motion to exclude website

evidence is reviewed for abuse of discretion. See United States v. Sutcliffe, 505

F.3d 944, 958 (9th Cir. 2007). The “Federal Rules of Evidence do not apply in

supervised release revocation proceedings.” United States v. Walker, 117 F.3d

417, 420 (9th Cir. 1997) (internal quotation marks omitted). However, the court’s

determination that Spink violated his supervised release conditions must be based

on “credible evidence” and “verified facts,” and “cannot stand on erroneous

information.” See United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008)

(internal quotation marks and citation omitted). When authenticity is an issue, the

connection between a defendant and text he is alleged to have authored may be

proven by circumstantial or direct evidence. United States v. Black, 767 F.2d

1334, 1342 (9th Cir. 1985).




                                          2
      Here, there was ample evidence linking Spink to the animal websites and to

the screen name “Fausty” that was used in the online postings, including photos of

Spink and his animals on the websites, items labeled “Fausty” found in Spink’s

home, and a sworn affidavit from one of Spink’s associates. The website evidence

had sufficient foundation, reliability, credibility and corroboration to be considered

in the evidentiary hearing. Moreover, Spink had a “fair and meaningful

opportunity to refute or impeach” the evidence and to cross-examine witnesses

about it. See Perez, 526 F.3d at 548 (internal quotation marks and citation

omitted). The district court carefully considered and rejected Spink’s arguments

about attribution, and did not abuse its discretion in denying the motion to exclude

website evidence. See Black, 767 F.2d at 1342.

      2.     For the same reasons that the website evidence was properly

considered in the evidentiary hearing, it was properly considered at the sentencing

hearing. District courts have broad discretion at sentencing, can consider a wide

range of information that could not otherwise be used at trial, and are not bound by

the Rules of Evidence. See 18 U.S.C. § 3661; United States v. Vanderwerfhorst,

576 F.3d 929, 935–36 (9th Cir. 2009). Here, the district court could consider the

website evidence in fashioning Spink’s sentence.




                                           3
      3.     In reviewing a sentence, the court first considers “whether the district

court committed significant procedural error” and, if it did not, then considers “the

substantive reasonableness of the sentence.” United States v. Carty, 520 F.3d 984,

993 (9th Cir. 2008) (en banc). We review claims of procedural error for abuse of

discretion, United States v. Spangle, 626 F.3d 488, 497 (9th Cir. 2010), even where

an objection was not raised in district court, United States v. Evans-Martinez, 611

F.3d 635, 642 (9th Cir. 2010) (explaining that plain error review does not apply

where question presented “is purely one of law” and the failure to raise claims of

procedural error in the district court does not prejudice the opposing party).

      In general, a district court commits procedural error when it fails to

calculate, or calculates incorrectly, the Guidelines range. Carty, 520 F.3d at 993.

The district court committed procedural error by failing to state the applicable

Guidelines range on the record. However, even procedural error may be “harmless

. . . where the requirements of Gall and Carty are met.” United States v. Munoz-

Camarena, 631 F.3d 1028, 1030 n.5 (9th Cir. 2011). Here, the requirements of

Carty are met because the totality of the record indicates that the district court was

aware of the sentencing guidelines range, which was (and remains) undisputed by

the parties and was specifically referenced in the Pre-Sentencing Report and by




                                           4
counsel for both sides at the sentencing hearing. See Carty, 520 F.3d at 992-93. In

this context, the procedural error does not warrant reversal.

      The substantive reasonableness of a sentence is reviewed for abuse of

discretion. Gall v. United States, 552 U.S. 38, 51 (2007). Here, Spink’s sentence

of thirty-six months incarceration and two more years of supervised release was

not unreasonable. It is supported by the nature and vast extent of Spink’s

supervised release violations. In addition, the district court considered the

“extraordinary break” that Spink had received on his sentence for his underlying

drug conviction, which is a factor specifically set forth in USSG § 7B1.4 as a basis

for a higher sentence for violating supervised release conditions. Under the totality

of the circumstances, Spink’s sentence and release conditions were within the

district court’s considerable discretion.

      4.     Spink challenges the district court’s imposition of supervised release

conditions related to computer use, which is reviewed for abuse of discretion.




                                            5
United States v. Johnson, 998 F.2d 696, 697 (9th Cir. 1993).1 Spink’s violations of

supervised release were related to, and furthered by, his computer use. The

computer-related conditions imposed by the court were reasonably related to the

goals of deterrence and rehabilitation, and involve no greater deprivation of liberty

than reasonably necessary. See 18 U.S.C. § 3583(d); United States v. Rearden, 349

F.3d 608, 618 (9th Cir. 2003). The district court did not abuse its discretion in

imposing these conditions.

      5.     Spink has waived his constitutional challenge to the Washington

animal cruelty statute, Wash. Rev. Code § 16.52.205(1)–(3), because the record

reflects that he knew about the challenge he is now making on appeal and he

specifically decided not to present it to the district court. Moreover, he has not

established that the court violated his due process rights or otherwise erred in

finding that he committed the Washington state crime of animal cruelty, thereby

violating the conditions of his supervised release. In any case, the animal cruelty

crime was just one of many violations supporting Spink’s sentence.


      1
         Before the district court, Spink objected to “software monitoring his
computer usage, copying his computer data, and inspecting his computer.” The
government asserts that this objection did not cover all of the computer conditions,
and therefore only plain error review applies to conditions numbers 13 and 15,
with the rest being reviewed for abuse of discretion. See United States v. Vega,
545 F.3d 743, 746 (9th Cir. 2008). We decline to resolve this issue because, under
either standard of review, all the conditions would be upheld.

                                           6
      6.     To invoke appellate review of a final order from the district court, a

timely notice of appeal must be filed in accordance with Rule 4 of the Federal

Rules of Appellate Procedure. United States v. Sadler, 480 F.3d 932, 940 (9th Cir.

2007). Rule 3(c)(1)(B) of the Federal Rules of Appellate Procedure requires that a

notice “designate the judgment, order, or part thereof being appealed.” Although

Rule 3 is construed liberally, “noncompliance is fatal to an appeal.” Smith v.

Barry, 502 U.S. 244, 248 (1992).

      The denial of Spink’s motion for return of property is not properly before

this court. The notice of appeal was filed on July 20, 2010. Spink did not file his

post-judgment motion for return of seized property until August 24, 2010. The

district court denied the motion on September 15, 2010, and Spink never filed a

notice of appeal from that order. Accordingly, the denial of his motion is not

properly before the court.

      AFFIRMED.




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