                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 09 2014

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



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 12-30398

              Plaintiff - Appellee,               D.C. No. 4:02-cr-00057-SEH-1

  v.
                                                  MEMORANDUM*
MELVIN JOSEPH LAST STAR,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                      Argued and Submitted December 6, 2013
                               Seattle, Washington

Before: HAWKINS and TALLMAN, Circuit Judges, and WHYTE,** Senior District
Judge.

       Melvin Joseph Last Star (“Last Star”) appeals the district court’s revocation of

his supervised release for both possession of “sexually oriented” or “sexually

stimulating” videos and for failing to complete sex offender treatment as a result of

        *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
       **
       The Honorable Ronald M. Whyte, Senior United States District Judge for the
Northern District of California, sitting by designation.
possessing those videos. Last Star also challenges the court’s imposition of a new

condition of release that prohibits him from dating or socializing with any person

having children under the age of eighteen. Because of recent legal decisions in this

circuit that the district court did not have the benefit of at the time of the original

sentencing, we reverse and remand.

      Last Star did not waive his facial challenge to the initial conditions of

supervised release, imposed immediately after his conviction, by failing to object to

them on direct appeal, as our court has permitted defendants to bring such challenges

during appeals of revocation. See, e.g., United States v. King, 608 F.3d 1122, 1128

(9th Cir. 2010); United States v. Antelope, 395 F.3d 1128, 1131-32, 1141 (9th Cir.

2005). We therefore permit Last Star to challenge his initial Special Release

Condition No. 4, which prohibited possession of “pornographic, sexually oriented, or

sexually stimulating materials,” as unconstitutionally vague. After Last Star’s initial

sentencing, this court determined in Antelope that an identical supervised release

provision was unconstitutionally vague because it failed to afford sufficient notice of

what conduct was prohibited. 395 F.3d at 1141-42. Applying Antelope, we conclude

that initial Special Release Condition No. 4 is likewise unconstitutionally vague and




                                          2
therefore cannot serve as a basis for revoking Last Star’s supervised release. We

therefore reverse the revocation of supervised release on this ground.1

      Further, revocation of Last Star’s supervised release under initial Special

Release Condition No. 2, which required completion of sex offender treatment, also

cannot stand. Although the district court may permissibly defer to a licensed

treatment provider as to the particular treatment needs for a defendant and may require

general compliance with the terms of conditions of such treatment program, see

United States v. Fellows, 157 F.3d 1197, 1203-04 (9th Cir. 1998), in this case the sex

offender treatment contract suffered from the same vagueness problem as initial

Special Release Condition No. 4 in that it failed to give Last Star sufficient and

specific notice of what type of materials he was prohibited from possessing, see

United States v. Sales, 476 F.3d 732, 737 (9th Cir. 2007) (defendant “cannot be left

to guess about the intended meaning of the terms of his supervised release”).

      Finally, under our precedent in United States v. Wolf Child, 699 F.3d 1082 (9th

Cir. 2012), the district court abused its discretion by imposing a new condition of

supervised release forbidding Last Star from “dat[ing] or socializ[ing] with anybody


      1
        We note that the new condition of supervised release that prohibits possession
of sexually explicit materials, imposed by the district court in 2012 (New Special
Release Condition No. 9), further defined and narrowed the definition of
impermissible materials by cross-reference to 18 U.S.C. § 2256(2), as approved by
this court in United States v. Rearden, 349 F.3d 608, 619–20 (9th Cir. 2003).

                                          3
who has children under the age of 18.” As noted in Wolf Child, this provision is

overbroad because nearly half the people in the United States would be on the “‘do

not associate’ list,” seriously impairing the defendant’s ability to “develop friendships,

maintain meaningful relationships with others, remain employed, or in any way lead

a normal life [during supervised release].” Id. at 1100-01. Moreover, the remainder

of the condition (to which Last Star does not object) already prohibits him from being

in the residence or company of any child under eighteen without prior written

approval of the probation office and also precludes him from going to or loitering near

places frequented by children under eighteen; thus, the challenged portion of the

condition only inhibits Last Star’s interaction with other adults, and without sufficient

justification.

       For the foregoing reasons, we reverse the district court’s revocation of

supervised release and remand so that the court may revise New Special Release

Condition No. 8.

       REVERSED AND REMANDED.




                                            4
