UNITED STATES v. BLACKHORSE (2019)

MEMORANDUM **

Johnston Blackhorse appeals the district court’s imposition of a special condition of supervised release (Special Condition 4), as well as its finding that Blackhorse violated federal obscenity statutes during supervised release. We affirm.

1. The district court did not plainly err in fashioning Special Condition 4. We have repeatedly affirmed similar conditions of supervised release. See, e.g., United States v. Daniels, 541 F.3d 915, 927–28 (9th Cir. 2008); United States v. Rearden, 349 F.3d 608, 618–20 (9th Cir. 2003); United States v. Bee, 162 F.3d 1232, 1234–35 (9th Cir. 1998). Thus, the district court could not have plainly erred. See United States v. Gnirke, 775 F.3d 1155, 1164 (9th Cir. 2015). And because Special Condition 4 extends to material depicting and/or describing simulated sexually explicit conduct involving children but not adults, it does not suffer from the overbreadth concerns that we articulated in Gnirke. See id. at 1163. For substantially the same reasons articulated in Daniels, Rearden, and Bee, we affirm the district court’s imposition of Special Condition 4.¹

2. The district court did not abuse its discretion in finding by a preponderance of the evidence that Blackhorse violated the obscenity statutes. Before the district court, Blackhorse did not clearly argue that his drawings are not obscene under Miller v. California, 413 U.S. 15, 24–25, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Nor did Blackhorse make an evidentiary objection concerning the district court’s obscenity finding. See United States v. Sesma-Hernandez, 253 F.3d 403, 409 (9th Cir. 2001). In any event, the district court clearly articulated its findings that Blackhorse’s drawings are obscene and that Blackhorse violated the obscenity statutes during supervised release. See id. Even assuming the district court did not sufficiently articulate these findings, any such error was harmless. See United States v. Perez, 526 F.3d 543, 547 (9th Cir. 2008).

AFFIRMED.

FOOTNOTES

1.   We also hold that the word “describing”—as used in Special Condition 4—is not unconstitutionally vague.