                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 11 2011

                                                                        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. 08-10108

              Plaintiff - Appellee,              D.C. No. 3:06-CR-00991-MHM-1

  v.
                                                 MEMORANDUM *
JIMI ADAY,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                    Mary H. Murguia, District Judge, Presiding

                       Argued and Submitted August 8, 2011
                            San Francisco, California

Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.

       Jimi Aday (“Aday”) appeals the district court’s sentence—20 years in prison

followed by a lifetime term of supervised release with sex offender

treatment—following Aday’s guilty plea to attempted aggravated sexual abuse in




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
violation of 18 U.S.C. §§ 1153, 2241(a), and 2246. We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.1

      The appellate waiver in Aday’s plea agreement is unenforceable because the

conditions of supervised release imposed by the district court are inconsistent with

the terms of his plea agreement. See United States v. Bibler, 495 F.3d 621, 624

(9th Cir. 2007). Nonetheless, Aday’s contentions are unpersuasive.

      First, the district court did not err in sentencing Aday to a lifetime term of

supervised release. The district court reasonably found—because of the nature and

severity of the offense, the need to protect the community, and the need to treat

possible sexually deviant behaviors—that lifetime supervised release was

appropriate. In fact, the district court here provided a more expansive explanation

of its sentence than did the district court in United States v. Cope, 527 F.3d 944

(9th Cir. 2008)—where this court upheld a lifetime term of supervised release for a

man convicted of possessing child pornography.

      Second, Aday did not object to plethysmograph testing at sentencing and,

thus, the imposition of that condition is reviewed for plain error. Reversal under

the plain error standard is appropriate only where the error “affected the outcome



      1
         The parties are familiar with the facts of the case, so we repeat them here
only to the extent necessary to explain our decision.

                                           2
of the district court proceedings” and “seriously affect[s] the fairness, integrity or

public reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725,

734, 736 (1993). Aday cannot satisfy this burden; both the district court and the

probation office determined, based on significant evidence in the record, that sex

offender treatment (including plethysmograph testing) was necessary to protect the

public from the extreme danger that Aday presents. Thus, there is little doubt that

the district court would have imposed this condition even if forced to articulate its

reasoning on the record, as required by United States v. Weber, 451 F.3d 552, 568

(9th Cir. 2006).

      Third, the district court’s requirement that Aday take all prescribed

medication as part of his sex offender treatment is also valid, so long as it is

construed narrowly and does not include any medication which implicates a

“particularly significant liberty interest.” See Cope, 527 F.3d at 955. A district

court may not require a defendant on supervised release to take medication (such

as antipsychotics) which “implicates a particularly significant liberty interest,”

unless it makes “on-the-record, medically-grounded findings that court-ordered

medication is necessary to accomplish one or more of the factors listed in [18

U.S.C.] § 3583(d)(1),” and “that the condition involves no greater deprivation of

liberty than is reasonably necessary.” Id. Here, the district court did not make the


                                           3
required on-the-record findings. Therefore, the “all-encompassing medication

condition must necessarily be understood as limited to those medications that do

not implicate a particularly significant liberty interest of the defendant.” Id.

However, if Aday’s future treatment does require medication which implicates a

significant liberty interest—such as treatment of his Asperger’s syndrome or

schizoid personality with antipsychotics—the district court may, at that time,

amend the terms of the supervised release and provide the medically-grounded

findings required by Cope.

      Finally, the district court here did not improperly delegate its authority to the

probation officer. Under United States v. Rearden, 349 F.3d 608 (9th Cir. 2003), a

district court may delegate to probation officers the authority to select the type and

extent of sex offender and mental health treatment.

      AFFIRMED.




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