                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 13 2015

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



                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 13-17374

              Plaintiff - Appellee,              D.C. No. 4:11-cr-02726-RCC-
                                                 DTF-1
 v.

KARL MODDERMAN,                                  MEMORANDUM*

              Defendant - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Raner C. Collins, Chief District Judge, Presiding

                        Argued and Submitted July 6, 2015
                            San Francisco, California

Before: GRABER and WATFORD, Circuit Judges, and FRIEDMAN,** District
        Judge.

      Defendant Karl Modderman challenges the imposition of three special

conditions that apply to his lifetime term of supervised release, which will follow

the 120 months’ imprisonment that he is now serving for possession of child


        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
           The Honorable Paul L. Friedman, United States District Judge for the
District of Columbia, sitting by designation.
pornography in violation of 18 U.S.C. § 2252A(a)(5)(B) and (b)(2). Defendant did

not challenge the conditions at his sentencing hearing. Nearly a year later,

proceeding pro se, Defendant filed a motion for correction of clerical mistakes

pursuant to Federal Rule of Criminal Procedure 36. After the district court denied

that motion, this court issued an order construing Defendant’s Rule 36 motion as a

petition under 28 U.S.C. § 2255, premised on a claim that the specified conditions

violate due process.

      We vacate this court’s September 17, 2013 order construing the Rule 36

motion as a § 2255 petition, vacate the district court’s denial of the Rule 36

motion, and remand to the district court for further proceedings. On remand, the

district court must inform Defendant of the consequences of recharacterizing his

Rule 36 motion as a § 2255 petition and must give him an opportunity to withdraw

or amend the motion pursuant to the procedures outlined in Castro v. United States,

540 U.S. 375, 382 (2003). If, after receiving the Castro warnings, Defendant

wishes to proceed, the district court must recharacterize the Rule 36 motion as a

§ 2255 petition.

      We express no opinion on the merits of Defendant’s challenge or on the

question whether that challenge was procedurally defaulted. But we note that, in

the Ninth Circuit, a defendant cannot, through a plea agreement, waive the right to


                                           2
challenge a sentence that violates the Constitution. United States v. Watson, 582

F.3d 974, 977 (9th Cir. 2009).

      We also note, for the benefit of the district court on remand, that the

government has conceded the following either in its briefing to this court or at oral

argument: (1) with respect to Special Condition 12, the sentencing court did not

explain the need for the extensive curtailment of liberty inherent in a lifetime

curfew; (2) with respect to Special Condition 13, it is overbroad to require the

wearing of undergarments and appropriate outer clothing "at all times . . . in the

home," regardless of the presence of others; and (3) with respect to Special

Condition 18, it is not clear which relationships are sufficiently "emotionally

close," "romantic," or "intimate" to trigger the disclosure requirement.

      VACATED and REMANDED.




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