                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            APR 18 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,                        No.    16-10302

              Plaintiff-Appellee,                D.C. No.
                                                 2:12-cr-50023-ROS-1
 v.

BRENT MARQUIZE LEE,                              MEMORANDUM*

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Roslyn O. Silver, District Judge, Presiding

                       Argued and Submitted March 15, 2017
                            San Francisco, California

Before: WARDLAW, GOULD, and CALLAHAN, Circuit Judges.

      Brent Marquize Lee (“Lee”) violated the terms of his supervised release. As

a result, the district court revoked Lee’s supervised release and sentenced him to 18

months’ confinement followed by a new term of supervised release. On appeal,

Lee argues that: (1) the district court failed to address his non-frivolous argument



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
for a below-Guidelines sentence of twelve months and one day; (2) the district

court erroneously imposed a no-alcohol condition, a substance abuse treatment

condition, and a computer search condition; and, (3) five of the standard

supervised release conditions are impermissibly vague. We have jurisdiction under

28 U.S.C. § 1291, and we affirm in part, vacate in part, and remand.1

      1.     “[W]hen a party raises a specific, nonfrivolous argument tethered to a

relevant § 3553(a) factor in support of a requested sentence, then the judge should

normally explain why he accepts or rejects the party’s position.” United States v.

Carty, 520 F.3d 984, 992–93 (9th Cir. 2008) (en banc). The sentencing judge must

“‘set forth enough to satisfy [the court] that he has considered the parties’

arguments and has a reasoned basis for exercising his own legal decisionmaking

authority.’” Id. at 996 (quoting Rita v. United States, 551 U.S. 338, 356 (2007)).

      Here, the district court stated that it had “considered everything that ha[d]

been brought to [its] attention,” which included, among other things, the probation

officer’s supervised release disposition report (“SRDR”) and the presentence report

(“PSR”). Additionally, at the second of the three hearings it held, the district court

specifically acknowledged Lee’s sentencing argument by stating that it needed



      1
             Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
                                           2
additional evidence before it could “decide whether or not [Lee] gets 12 months

and a day or 18 months or 24 months because of [his] conduct.” Thus, it is clear

that the district court considered Lee’s argument for a below-Guidelines sentence,

and, in light of Lee’s criminal history and the district court’s concern with Lee’s

continued involvement with weapons and substance abuse problems, had a

reasoned basis for rejecting it. See Carty, 520 F.3d at 995–96.

      2.     The record in this case supports the district court’s imposition of the

substance abuse treatment and no-alcohol conditions. Conditions of supervised

release must be “reasonably related to the goals of deterrence, protection of the

public, or rehabilitation of the offender, taking into account the offender’s history

and personal characteristics, and involve no greater deprivation of liberty than is

reasonably necessary for the purposes of supervised release.” United States v.

Watson, 582 F.3d 974, 982 (9th Cir. 2009) (internal quotation mark omitted); see

also 18 U.S.C. §§ 3553(a), 3583(d)(1). Here, pursuant to the terms of his initial

supervised release, Lee was not to consume alcohol. However, despite this and his

recent completion of a substance abuse treatment program, Lee twice tested

positive for alcohol. Accordingly, it was reasonable for the district court to find

that Lee had an alcohol problem, and that the purposes of supervised release would

be furthered by ordering Lee not to drink alcohol and to participate in treatment.


                                           3
      3.       As for Lee’s impermissible delegation argument, it is unavailing.

Probation officers have a continuing duty to ensure that, as things change,

conditions are modified to ensure that they do not involve a deprivation of liberty

that is greater than is reasonably necessary. United States v. Quinzon, 643 F.3d

1266, 1274 (9th Cir. 2011). The discretion afforded here does not exceed what is

permissible.

      4.       Further, the district court did not improperly shift the burden to Lee to

show that the treatment condition should not be imposed. Unlike in United States

v. Betts, 511 F.3d 872 (9th Cir. 2007), the district court did not base the imposition

of the substance abuse treatment condition on Lee’s refusal to respond to a specific

inquiry, see id. at 878, but rather, it did so based on evidence indicating that Lee

had a substance abuse problem. Thus, no impermissible burden shifting occurred.

      5.       Also, relief is not warranted with regard to the five standard

supervised release conditions. The conditions are “reasonably related to the goals

of deterrence, protection of the public, or rehabilitation” of Lee. Watson, 582 F.3d

at 982. Further, because the standard conditions were contained in the Sentencing

Guidelines and there was no controlling precedent deciding that the standard

conditions were impermissibly vague or overbroad at the time the district court




                                            4
sentenced Lee, the district court did not plainly err in imposing them.2 See United

States v. Gonzales-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011).

      6.     However, the district court erred when it imposed the computer search

condition. The Government concedes that this condition was erroneously imposed,

and there is no evidence on the record establishing a nexus between computer use

and the need for the sentence imposed to accomplish deterrence, protection of the

public, or rehabilitation of Lee. See United States v. Bare, 806 F.3d 1011, 1013

(9th Cir. 2015). Thus, we vacate the search condition to the extent that it allows

the search of Lee’s computers, electronic communications or data storage devices

or media, and remand so that the district court can modify the condition consistent

with this disposition.

      AFFIRMED IN PART; VACATED IN PART; AND REMANDED.




      2
             Of course, on remand, the district court may modify the standard
conditions to reflect the recent amendments to those conditions. See 18 U.S.C. §
3583(e)(2).
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