Submitted May 17, 2019 [*] San Francisco, California
from the United States District Court for the Eastern
District of California Lawrence J. O'Neill, Chief
District Judge, Presiding No. 1:08-cr-00262-LJO-1.
P. Burcham, Burcham & Zugman, San Diego, California, for
Vincente A. Tennerelli, Assistant United States Attorney;
Camil A. Skipper, Appellate Chief; McGregor Scott, United
States Attorney; United States Attorney's Office, Fresno,
California; for Plaintiff-Appellee.
Before: Sandra S. Ikuta and Morgan Christen, Circuit Judges,
and Brian M. Morris, [**] District Judge.
panel reversed in part and affirmed in part the district
court's judgment in a case in which the district court
revoked the defendant's supervised release on the ground
that he violated a special condition that, among other
things, prohibited him from frequenting a place whose primary
purpose is to provide access to material depicting and/or
describing sexually explicit conduct.
the dictionary definitions of "frequent," the panel
reversed the district court's finding that the defendant
violated the condition by visiting an adult-themed business
panel rejected the defendant's contentions that the
special condition is unconstitutionally vague, is overbroad,
and deprived him of more liberty than reasonably necessary.
The panel wrote that the condition is not meaningfully
distinguishable from a condition this court approved in
United States v. Gnirke, 775 F.3d 1155 (9th Cir.
2015), and properly abridges the defendant's right to
free speech in order to effectively address his sexual
panel remanded for further proceedings.
Morris, District Judge.
Larry Ochoa, appeals the district court's finding that
Ochoa "frequented" a prohibited place in violation
of his supervised release special condition number nine.
Ochoa also challenges the constitutionality of special
condition nine on over-breadth and vagueness grounds. We
possess jurisdiction pursuant to 28 U.S.C. § 1291 and 18
U.S.C. § 3742(a).
Facts and ...