                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 25 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 12-50327

              Plaintiff - Appellee,              D.C. No. 2:09-cr-00920-JAK-1

  v.
                                                 MEMORANDUM*
CHARLES WILLIAM MALONE,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                      Argued and Submitted February 4, 2014
                               Pasadena, California

Before: SCHROEDER and CLIFTON, Circuit Judges, and TUNHEIM, District
Judge.**

       Defendant-Appellant Charles Malone pled guilty to one count of distributing

crack cocaine in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A)(iii) and was

sentenced to a term of imprisonment of 114 months. On appeal Malone argues that

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
the district court erred in imposing a special condition of supervised release

preventing Malone from associating with anyone known to him to be a member of

the Rollin’ 40’s Crips gang. We have jurisdiction under 28 U.S.C. § 1291. We

review Malone’s contention that the district court failed to comply with Federal

Rule of Criminal Procedure 32(i)(3)(B) de novo, United States v. Herrera-Rojas,

243 F.3d 1139, 1142 (9th Cir. 2001), and the district court’s imposition of

conditions of supervised release for abuse of discretion, United States v. Wolf

Child, 699 F.3d 1082, 1089 (9th Cir. 2012). We affirm.

      Malone’s objections that the United States failed to meet its burden of proof

with regard to whether Malone was a member of the Rollin’ 40’s Crips were likely

not “specific factual objections” sufficient to trigger the district court’s obligation

to rule on the dispute under Rule 32(i)(3)(B). See United States v. Stoterau, 524

F.3d 988, 1011 (9th Cir. 2008). Rather, Malone appeared to object primarily to the

sufficiency of the evidence rather than “deny[ing] that the police reports contained

the information alleged in the PSR or that the information was factually

inaccurate.” Id. at 1012; see also United States v. Grajeda, 581 F.3d 1186, 1188-

89 (9th Cir. 2009) (finding that Rule 32 was not implicated where “Grajeda did not

controvert the accuracy of the PSR or argue that he had not been convicted of the




                                            2
listed crimes” but instead argued that the government had failed to meet its burden

of proving the prior convictions).

      Given the nature of Malone’s objections, the district court’s imposition of

the gang association condition was sufficiently “express or explicit” to comply

with Rule 32. United States v. Doe, 705 F.3d 1134, 1153 (9th Cir. 2013) (internal

quotation marks omitted); see also United States v. Doe, 488 F.3d 1154, 1158-59

(9th Cir. 2007) (holding that the district court may comply with Rule 32 by

expressly adopting the position of either party to the dispute, provided that by

adopting the particular position the court necessarily resolved the objection at

issue). The district court therefore did not abuse its discretion in imposing the

gang association condition, which was reasonably related to the statutory goals of

supervised release and involved no greater deprivation of liberty than reasonably

necessary to achieve those goals. See United States v. Napulou, 593 F.3d 1041,

1044 (9th Cir. 2010).

      The district court was not required to make specific determinations under

United States Sentencing Guidelines § 5F1.5(a) because the government explicitly

stated that the gang association condition will not prevent Malone from working as

a counselor with at-risk youth, even if those youth happen to be gang members.

Therefore, the condition does not constitute an occupational restriction. See


                                          3
Arciniega v. Freeman, 404 U.S. 4, 4 (1971); United States v. Soltero, 510 F.3d

858, 866-67 (9th Cir. 2007).

      AFFIRMED.




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