                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 12 2012

                                                                        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. 11-50182

              Plaintiff - Appellee,              D.C. No. 2:03-cr-1101-ABC

  v.                                             MEMORANDUM *

DONALD GEORGE WOODFIELD,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Audrey B. Collins, District Judge, Presiding

                                                      **
                             Submitted June 7, 2012
                               Pasadena, California

Before: TROTT and THOMAS, Circuit Judges, and DUFFY, District Judge.***

       Donald George Woodfield (“Defendant”) appeals a judgment of the Central



         *
             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).
       ***
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.

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District of California finding him in violation of a supervised release condition

prohibiting his unsupervised contact with persons under the age of eighteen and,

alternatively, challenges the imposition of the condition as impermissibly vague

and a greater deprivation of liberty than reasonably necessary under 18 U.S.C. §

3583(d). Defendant also appeals the District Court’s post-revocation imposition of

a condition requiring him to submit to a search at any time without a warrant. We

have jurisdiction under 28 U.S.C. § 1291, and we AFFIRM.

      This Court reviews a sufficiency-of-the-evidence challenge to a revocation

of supervised release in the light most favorable to the government and determines

whether any rational judge “could have found the essential elements of a violation

by a preponderance of the evidence.” United States v. King, 608 F.3d 1122, 1129

(9th Cir. 2010) (internal quotation marks omitted); United States v. Jeremiah, 493

F.3d 1042, 1045 (9th Cir. 2007); see also 18 U.S.C. § 3583(e)(3).

      The District Court could have found Defendant in violation of his supervised

release because his contact with a minor female was not incidental or unknowing.

See United States v. Soltero, 510 F.3d 858, 866-67 (9th Cir. 2007) (per curiam)

(holding that “‘incidental contacts’ . . . do not constitute association” for

supervised release condition prohibiting defendant from associating with gang

members (quoting Arciniega v. Freeman, 404 U.S. 4, 4 (1971) (per curiam)));



                                            2
United States v. Vega, 545 F.3d 743, 749 (9th Cir. 2008) (holding defendant must

knowingly associate with members of criminal street gang to violate

nonassociation supervised release condition). Here, Defendant’s probation officer

testified that, during an unannounced visit to Defendant’s apartment, he observed a

girl under the age of ten sitting alone on a couch while Defendant occupied the

bathroom. The probation officer observed the young girl’s aunt—also Defendant’s

girlfriend—outside the apartment sweeping a second-tier walkway in the apartment

complex. Further, approximately two weeks before the incident at issue, the

probation officer issued a written letter of reprimand, signed by Defendant, in

response to Defendant’s momentary, unsupervised contact with his grandsons and

his girlfriend’s teenage sons. Viewing the evidence in the light most favorable to

the government, the District Court could have found by a preponderance of the

evidence that Defendant associated with a minor.

      Defendant alternatively argues that the nonassociation condition, as applied

by the District Court, is impermissibly vague and involves a greater deprivation of

liberty than is reasonably necessary under 18 U.S.C. § 3583(d). Because

Defendant failed to raise these arguments before the District Court or on direct

appeal, this Court reviews for plain error. United States v. Rearden, 349 F.3d 608,

614 (9th Cir. 2003).



                                          3
      A condition of supervised release is impermissibly vague if it “fail[s] to give

a person of ordinary intelligence fair notice that it would apply to the conduct

contemplated.” Id. “A probation officer’s instructions are relevant to whether a

supervised release condition gives fair warning of prohibited conduct.” King, 608

F.3d at 1128-29.

      Here, the probation officer provided Defendant with oral and written notice

that momentary, unsupervised contact with minors was a violation of his

supervised release. The probation officer’s express notice and Defendant’s

entering his apartment with knowledge that an unsupervised, minor female was

present preclude a finding of plain error.

      Defendant also challenges the nonassociation condition as an unreasonable

deprivation of liberty. Nonassociation conditions comport with the requirements

of § 3583(d) where the condition “promotes [the defendant’s] rehabilitation, deters

him from committing future crimes, and protects the public.” United States v.

Stoterau, 524 F.3d 988, 1008 (9th Cir. 2008); United States v. Bee, 162 F.3d 1232,

1235 (9th Cir. 1998). Given Defendant’s interest in child pornography, the District

Court did not err in imposing the nonassociation condition.

      Finally, Defendant argues that the District Court’s post-revocation

imposition of a condition requiring him to submit to a search at any time without a



                                             4
warrant is an unreasonable deprivation of liberty under § 3583(d). This Court

reviews a district court’s decision to impose a supervised release condition for an

abuse of discretion and “give[s] considerable deference to a district court’s

determination of the appropriate supervised release conditions, recognizing that a

district court has at its disposal all of the evidence, its own impressions of the

defendant, and wide latitude.” Vega, 545 F.3d at 747 (quoting Stoterau, 524 F.3d

at 1002) (internal quotation marks omitted).

      Defendant was convicted of possessing a cache of photo images appearing to

depict “pre-pubescent and adolescent females naked, with their genitals exposed

and engaged in some sort of sexual behavior.” Defendant has attributed his

possession of and interest in child pornography to methamphetamine use. He has

repeatedly tested positive for methamphetamine during his term of supervised

release. Given Defendant’s multiple supervised release violations and his history

of prohibited association with minors, the search condition is reasonably related to

protecting the public by deterring future offenses and by furthering his

rehabilitation. For the foregoing reasons, the District Court’s imposition of the

search condition was not an abuse of discretion.

AFFIRMED.




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