TALLMAN, Circuit Judge:
On December 13, 2012, a jury convicted Ibrahim Fahab Bare—a non-Indian who lives on tribal land with his common-law wife—of two counts of being a felon in possession of a firearm. Bare challenges his 4-level sentencing enhancement for his use of a firearm in connection with another felony offense, as well as his condition of supervised release permitting searches of his computers and other electronic devices by a United States Probation Officer. We hold that due to the Assimilative Crimes Act ("ACA"), it does not matter whether the requisite felony offense occurred on tribal lands or within the state's jurisdiction in order to apply an enhancement for discharging a firearm under United States Sentencing Guidelines § 2K2.1(b)(6)(B). We further hold that so long as a district court makes a properly supported factual finding from the record before it, establishing some nexus between computer use and the need for the sentence imposed to accomplish deterrence, protection of the public, or rehabilitation of the defendant, it is not an abuse of discretion for the district court to impose a condition of supervised release permitting the search of a defendant's personal computers. Because the district court made such a permissible factual finding establishing the nexus here, and because Bare is subject to punishment for committing the felony offense of disorderly
On April 9, 2012, Navajo Tribal Police responded to a call reporting shots fired at Bare's residence located on the Navajo Reservation in Whippoorwill, Arizona.
Bare's common-law wife consented to a search of their shared residence. Officers recovered a nine-millimeter Jimenez Arms pistol inside a bag of dog food located in the dining room, as well as one spent shell casing located on the ground outside the home. After ignoring multiple commands to submit to arrest, the officers pepper sprayed Bare and took him into custody. The case was referred to federal authorities for prosecution.
On May 7, 2012, the United States filed a complaint in federal court alleging Bare committed a felony firearms offense. Because Bare failed to appear in court, federal agents went to his residence with an arrest warrant. When the agents approached, Bare ran inside the residence, locked the front door, and began destroying items. After Bare unlocked the door and emerged from the residence, agents took him into custody and searched the home. The search revealed:
The agents also found pills, drugs, a digital scale, and a financial ledger "titled `My Money' with names and numbers next to the names." Bare admitted he knew he could not possess firearms due to prior felony convictions.
Bare denied ownership of the weapons. He claimed two of the firearms belonged to family members, and the rest "were in his possession as they were `pawned' as part of his self-employed, in-home pawn business." Bare's common-law wife also told investigators during an interview that she "believed the financial ledger discovered in the residence was a list of Bare's pawn customers." She acknowledged her prior awareness of the firearms that had been found in their home and told agents she thought Bare had "taken them in pawn."
The district court initially sentenced Bare on April 8, 2013. It applied a base offense level of 22 after treating Bare's felony for resisting arrest as a crime of violence. See U.S.S.G. § 2K2.1(a)(3)(B) (base offense level of 22 for "unlawful receipt, possession, or transportation of firearms or ammunition" if "the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of . . . a crime of violence"). It also applied a 2-level enhancement because the offense involved at least three firearms. See id. § 2K2.1(b)(1)(A). At the time of Bare's initial sentencing, the United States Probation Office did not recommend, and the district court did not therefore adopt, a 4-level enhancement for the use of a firearm in connection with another felony offense. See id. § 2K2.1(b)(6)(B). Bare's total offense level (24), coupled with his criminal history category (II), resulted in an advisory Guidelines range of 57-71 months.
At sentencing, the district court explained Bare's offense was "perhaps one of the worst felon in possession cases I have seen in my nine years as a judge of this court . . . because of the length, the awareness of the wrongfulness, the commercial possession of taking of firearms, [and] the discharge of the firearm." It sentenced Bare to 57 months imprisonment. In addition, the district court imposed a computer search condition of supervised release. It overruled Bare's objection to this condition, expressly finding a nexus between Bare's operation of a pawn business involving firearms and the ability to store records related to that business on computers or other electronic devices: "I do see a nexus here . . . because there was a commercial context to what he was doing that goes directly to the offense in possession."
Bare appealed his conviction and sentence. United States v. Bare, 583 Fed.Appx. 721, 722 (9th Cir.2014). We affirmed his conviction, but vacated his sentence because the district court erred when calculating his base offense level. Id. at 723-24. We held Bare had not previously been convicted of a crime of violence, which "might well [have] affect[ed] the district court's sentencing decision." Id. at 724; see also United States v. Flores-Cordero, 723 F.3d 1085, 1088 (9th Cir.2013) ("[A]n Arizona conviction for resisting arrest cannot be considered categorically a crime of violence under the federal Sentencing Guidelines.").
Bare's resentencing took place on October 21, 2014. Upon remand, Bare's corrected base offense level was 20. See U.S.S.G. § 2K2.1(a)(4). The district court once again applied a 2-level enhancement because the offense involved at least three firearms. See id. § 2K2.1(b)(1)(A). In addition, it applied the 4-level enhancement for the use of a firearm in connection with another felony offense—disorderly conduct in violation of Arizona Revised Statutes § 13-2904(A)(6). See id. § 2K2.1(b)(6)(B). Probation explained it was an error to fail to include this enhancement in Bare's original Presentence Report. Bare's resulting total offense level was 26, with an advisory Guidelines range of 70-87 months.
The district court incorporated its view that the "comments in the first sentencing [we]re all still correct," and emphasized:
Recognizing Bare's recent success and lack of disciplinary infractions while in custody on the latest charges, the district court sentenced him to 54 months imprisonment.
Finally, the district court reimposed the computer search condition of supervised release: "You shall submit your person, property, house, residence, vehicles, papers, computers as defined in 18 U.S.C. § 1030(e)(1), other electronic communications or data storage devices or media, or office, to a search conducted by a probation officer. . . . You shall warn any other occupants that the premises may be subject to searches pursuant to this condition." Bare objected to the portion of this condition as it related to computers or "data compilations," but did not object to the other aspects of the search condition.
"[W]e review the district court's interpretation of the Sentencing Guidelines de novo." United States v. Valenzuela, 495 F.3d 1127, 1130 (9th Cir.2007) (quotation omitted). "We review conditions of supervised release for abuse of discretion." United States v. Betts, 511 F.3d 872, 874 (9th Cir.2007). "In applying this standard of review, `we give considerable deference to a district court's determination of the appropriate supervised release conditions,' recognizing that `a district court has at its disposal all of the evidence, its own impressions of a defendant, and wide latitude.'" United States v. Stoterau, 524 F.3d 988, 1002 (9th Cir.2008) (quoting United States v. Weber, 451 F.3d 552, 557 (9th Cir.2006)).
A 4-level enhancement is appropriate when the defendant "[u]sed or possessed any firearm or ammunition in connection with another felony offense[.]" U.S.S.G. § 2K2.1(b)(6)(B). Such a "felony offense" "means any Federal, state, or local offense. . . punishable by imprisonment for a term exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained." Id. § 2K2.1 cmt. 14(C).
Bare's actions, if committed elsewhere in Arizona, would qualify as felony disorderly conduct under Arizona Revised Statutes § 13-2904(A)(6) for "recklessly handl[ing], display[ing] or discharg[ing] a deadly or dangerous instrument." See Ariz.Rev.Stat. § 13-2904(B) (classifying disorderly conduct under subsection (A)(6) as "a class 6 felony"). Because Bare, a non-Indian, discharged a firearm over the head of an Indian while on the Navajo
The district court properly considered what is otherwise a felony violation of Arizona Revised Statutes § 13-2904(A)(6), which supported its application of the enhancement. See United States v. Turnipseed, 159 F.3d 383, 384, 386 (9th Cir.1998) (upholding application of enhancement where defendant fired a handgun in the direction of several youths in violation of a Washington assault statute). We therefore hold that the district court did not err in adding to Bare's base offense level a 4-level enhancement under § 2K2.1(b)(6)(B) for firing a shot near Begay during their altercation.
"The principal statutory provision that constrains the district court's discretion to impose conditions of supervised release is 18 U.S.C. § 3583(d)." Stoterau, 524 F.3d at 1002. "[T]he conditions imposed are permissible only if they are reasonably related to the goal of deterrence, protection of the public, or rehabilitation of the offender." United States v. T.M., 330 F.3d 1235, 1240 (9th Cir.2003) (citing 18 U.S.C. §§ 3583(d)(1), 3553(a)). "The supervised release conditions need not relate to the offense for which [the defendant] was convicted as long as they satisfy any of the conditions set forth [in § 3583(d)(1)]." Id.; see also United States v. Blinkinsop, 606 F.3d 1110, 1119 (9th Cir.2010) ("`A condition of supervised release does not have to be related to the offense of conviction,' because the sentencing judge is statutorily required `to look forward in time to crimes that may be committed in the future' by the convicted defendant." (quoting United States v. Wise, 391 F.3d 1027, 1031 (9th Cir.2004))).
While we have on occasion vacated conditions of supervised release limiting or restricting the ability to use computers and access the Internet, we have not taken such a heavy hand with respect to general search conditions of personal computers. Compare United States v. Barsumyan, 517 F.3d 1154, 1161 (9th Cir.2008) ("[A] mere nexus between the crime and a computer does not justify proscribing the use of anything containing a circuit board or microchips."), with United States v. Morris, 485 Fed.Appx. 213, 216 (9th Cir.2012) ("Morris has cited no authority that clearly supports her argument that a suspicionless computer search-and-seizure condition may not be imposed on a defendant who only tangentially made use of a computer in the course of her crime, nor authority that holds that the district court's computer search conditions are impermissibly broad.").
We hold that so long as a district court makes a factual finding establishing some nexus between computer use and one of the goals articulated in 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C), or (a)(2)(D)—which was amply supported by the record here—it is not an abuse of discretion for a district court to impose a condition of supervised release permitting the search of a defendant's personal computers. See
In Betts, we affirmed a condition for warrantless searches "at any time" of the defendant's "person and property," where "property" presumably included computers. See 511 F.3d at 876. Because "[p]eople on supervised release have not completed their sentences, they are serving them," we drew a parallel between state parolees and federal felons who are out on supervised release.
The district court made a factual finding that a nexus existed here between Bare's potential computer use while he remains under supervised release and the need to deter his future criminal conduct, i.e., repeating the possession and pawning of prohibited firearms. We disturb the nexus finding only if it is clearly erroneous. See Hinkson, 585 F.3d at 1259. The district court's nexus finding was not clearly erroneous and, in fact, was well-supported by the facts of the case. As articulated by the Government during Bare's original sentencing, evidence existed that Bare kept paper records of his illicit firearms pawn business. Permitting a search of only paper records—but not computers—might enable Bare to evade discovery of recidivist activity by switching his records into an electronic format. Allowing such a loophole to exist would, as denounced in Samson, give Bare a "greater opportunity to anticipate searches and conceal criminality." 547 U.S. at 854, 126 S.Ct. 2193.
Although the dissent requires a direct nexus between the offense conduct and the computer search condition, the law does not.
Here, the circumstances of Bare's offense yield a demonstrable nexus between both his offense and the need for adequate deterrence. His conviction for being a felon in possession of firearms arose directly out of his home-based commercial pawn business. We are mindful that one of the weapons Bare took in pawn was an AK47, with a 47-round clip, a weapon existing for no other purpose than to efficiently kill others. Because future records for such a business might easily be kept on computers, the district court did not abuse its discretion when imposing the electronic search condition. No case in our Circuit dictates the opposite conclusion.
Even Bare himself acknowledges that some computer-related search condition would be reasonable:
We conclude that the district court's nexus findings were sufficient to properly support the computer search condition imposed. There was no abuse of discretion in doing so.
KOZINSKI, Circuit Judge, dissenting in part:
Persons on supervised release may have diminished expectations of privacy, but they have privacy rights nonetheless. Moreover, Congress has instructed us to adopt conditions of supervised release that impose "no greater deprivation of liberty than is reasonably necessary" to achieve the goals of supervised release. 18 U.S.C. § 3583(d)(2). The majority today disregards this command by allowing probation officers to search defendant's computer at any time, for any reason or no reason, even though defendant did not use a computer to carry out his crime, and (so far as we know) did not even own a computer when he committed the offense.
The majority's rationale, that defendant's crime could be committed with the help of a computer, is no limitation at all. Pretty much any federal crime can be
The Supreme Court recently reminded us of the massive intrusion into personal privacy that occurs when police rifle through the contents of a smartphone, which the Court characterized as a "minicomputer[ ]." Riley v. California, ___ U.S. ___, 134 S.Ct. 2473, 2489, 189 L.Ed.2d 430 (2014). The Court criticized electronics searches for allowing police to reconstruct "[t]he sum of an individual's private life." Id. The search of all of defendant's computers—desktops, laptops, smartphones—would certainly do no less. Such an intrusion must be based on a substantial justification, which is why none of our published opinions approve an electronics search condition where the crime itself doesn't involve the use of a computer. And after Riley, other courts have invalidated expansive electronics search conditions that lack a nexus to the defendant's crime. See, e.g., In re Roman P., No. A143468, 2015 WL 6604609, at *2-3 (Cal.Ct.App. Oct. 30, 2015); In re Erica R., 240 Cal.App.4th 907, 192 Cal.Rptr.3d 919, 922-23 (2015).
The majority cites two cases for the contrary proposition, but this reliance is misplaced. Betts merely refers to searches of the defendant's "person and property," which the majority "presumes" includes computers. See United States v. Betts, 511 F.3d 872, 876 (9th Cir.2007); Maj. Op. at 1018-19. But computers were not mentioned in Betts, so that case provides no support for today's ruling. And Sales cuts entirely against the majority. There we vacated a supervised release condition requiring the defendant to obtain approval from a probation officer before accessing the web, because his crime "in no way involved or relied upon the internet." United States v. Sales, 476 F.3d 732, 736 (9th Cir.2007). Using the rationale of today's opinion, Sales would have come out the other way because the defendant there could have used the internet to commit his counterfeiting crime and might do so next time. Betts and Sales are in conflict.
The majority also cites two unpublished cases to support its decision. Maj. Op. at 1019-20. But our rules clearly state that unpublished dispositions aren't authority. Ninth Cir. Rule 36-3(a). And for good reason: They generally aren't worded carefully enough to govern future cases, nor are they exposed to the type of en banc scrutiny to which published opinions are subjected. See Hart v. Massanari, 266 F.3d 1155, 1178-79 (9th Cir.2001). In any event, the memdispos don't help the majority. In United States v. Manuel, the defendant challenged his computer search condition because it was imposed based on the incorrect assumption that he was a gang member—not because he didn't use electronics in committing his crime. 601 Fed.Appx. 585 (9th Cir.2015). And the Hayes defendant used a cell phone to send threatening messages, so the electronic search condition was reasonably related to his previous offenses. United States v. Hayes, 283 Fed.Appx. 589 (9th Cir.2008). The majority is grasping at straws.
Bare obtained firearms through a small-scale pawn operation he ran out of his home on the Whippoorwill Navajo reservation. So informal was his enterprise that FBI agents didn't find a single electronic
In re Patrick F., No. A143586, 2015 WL 7009056, at *3 (Cal.Ct.App. Nov. 12, 2015) (citing In re Ricardo P., 241 Cal.App.4th 676, 193 Cal.Rptr.3d 883, 893 (2015) and expressly disagreeing with In re Erica R.).