                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 10 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-10175

                Plaintiff-Appellee,             D.C. No.
                                                1:18-cr-00118-LEK
 v.

MATTHEW PRESTON CAULK,                          MEMORANDUM*

                Defendant-Appellant.

UNITED STATES OF AMERICA,                       No.    19-10176

                Plaintiff-Appellee,             D.C. No.
                                                1:18-cr-00119-LEK
 v.

MATTHEW PRESTON CAULK,

                Defendant-Appellant.

                   Appeal from the United States District Court
                              for the District of Hawaii
                   Leslie E. Kobayashi, District Judge, Presiding

                              Submitted July 8, 2020**
                                 Honolulu, Hawaii


      *
             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).
Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.

      Matthew Caulk appeals from his sentence1 for violations of supervised

release following two convictions for failure to register as a sex offender. As the

parties are familiar with the facts, we do not recount them here. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm in part, vacate in part, and

remand.

      Caulk contends that several of the district court’s special conditions are

vague, overbroad, and deprive him of more liberty than reasonably necessary, and

that the district court improperly calculated the Sentencing Guidelines range in

imposing his five-year term of supervised release. Because Caulk raises these

issues for the first time on appeal, plain error review applies. See United States v.

Liew, 856 F.3d 585, 596 (9th Cir. 2017).

          1.   The district court plainly erred in imposing the first part of Special

Condition 9, which prohibits Caulk from viewing or possessing any visual

depiction of “sexually explicit conduct,” as defined in 18 U.S.C. § 2256. Special

Condition 9 deprives Caulk of more liberty than is reasonably necessary because,

as written, it prohibits Caulk from viewing or possessing “any depiction of actual

or simulated adult sexual intercourse, however fleeting or veiled, and regardless of


      1
             The district court sentenced Caulk to two concurrent, six-month
prison sentences followed by five years of supervised release.

                                            2
how insignificant it may be to the overall content of” the portrayal. United States

v. Gnirke, 775 F.3d 1155, 1163 (9th Cir. 2015); see also 18 U.S.C. § 3583(d)(2).

In light of Gnirke, where we vacated a similar condition of supervised release, we

hold that the error here was plain and affected Caulk’s substantial rights. See

United States v. Barsumyan, 517 F.3d 1154, 1160–62 (9th Cir. 2008). We

therefore vacate the first sentence2 of Special Condition 9, and remand for the

district court to craft a new condition that is consistent with Gnirke. See United

States v. Ped, 943 F.3d 427, 433 (9th Cir. 2019).

          Regarding the remaining challenged conditions, Caulk’s arguments are

without merit. He has not shown that it was obviously erroneous to conclude that

each condition is reasonably related to the goals of deterrence, protecting the

public, and rehabilitation, and involves no greater deprivation of liberty than is

reasonably necessary. See 18 U.S.C. § 3583(d)(1), (2).3


      2
             The district court did not plainly err in imposing the remainder of
Special Condition 9 because Caulk is only prohibited from frequenting places
where visual depictions of sexually explicit conduct is the primary product for sale,
thereby distinguishing itself from the erroneous condition in Gnirke. Gnirke, 775
F.3d at 1163 (concluding defendant’s liberty deprived more than necessary where
special condition prohibited defendant from patronizing any place where materials
depicting sexually explicit content were available).
      3
              Caulk also argues that the district court “failed to provide a sufficient
explanation for the special conditions,” which he appears to contend was required
for some of the conditions on the basis that they implicate a “particularly
significant liberty interest.” See United States v. Wolf Child, 699 F.3d 1082, 1090


                                           3
       2.    The district court did not plainly err in calculating the Guidelines

range for supervised release. Following revocation of supervised release, a district

court may impose a term of supervised release that does not “exceed the term of

supervised release authorized by statute for” the underlying offense, “less any term

of imprisonment that was imposed upon revocation of supervised release.” 18

U.S.C. § 3583(h); see also U.S.S.G. § 7B1.3(g)(2). Here, the underlying offenses

were violations of 18 U.S.C. § 2250, failure to register as a sex offender, which

have an authorized term of supervised release of a minimum of five years and a

maximum of life. 18 U.S.C. § 3583(k); see also United States v. Crowder, 738

F.3d 1103, 1104–05 (9th Cir. 2013). Though Caulk served forty months of

imprisonment for past revocations, the district court did not plainly err when it

failed to subtract Caulk’s prior periods of incarceration because the maximum term

was life. See Crowder, 738 F.3d at 1105 (explaining that subtracting a term of

imprisonment from a supervised release term of life is an “almost metaphysical




(9th Cir. 2012). Because Caulk’s opening brief does not include meaningful
discussion or authority in support of the position that the conditions imposed in this
case obviously involve this category of liberty interest and that heightened
procedures were therefore required before the conditions could be imposed, we
deem any such procedural argument forfeited. Tri-Valley CAREs v. U.S. Dep’t of
Energy, 671 F.3d 1113, 1129–30 (9th Cir. 2012).

                                          4
issue and it is highly unlikely that Congress intended to bar lifetime supervised

release under the statute” (internal quotation marks and citation omitted)).4

          AFFIRMED in part; VACATED in part; REMANDED.




      4
              We need not decide whether Caulk’s belated ex post facto argument is
forfeited, because it fails on the merits. By the time Caulk committed his first
underlying offense in 2007, 18 U.S.C. § 3583(k) applied to failure to register
offenses. See United States v. Hanson, 936 F.3d 876, 883 (9th Cir. 2019).

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