NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,

Plaintiff

- Appellee,

v. GREGORY PAUL AGUIRRE,

Defendant

- Appellant. No. 14

- 10352 D.C. No. 2:10

- cr - 00445

- MCE

- 1

MEMORANDUM *

Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., Chief District Judge, Presiding Argued and Submitted March 17, 2016 San Francisco, California Before: NOONAN, GOULD, and FRIEDLAND, Circuit Judges. Gregory Paul Aguirre pled guilty to and was convicted of distribution of child pornography. T he district court sentenced Aguirre to a within

- Guidelines sentence of 188 months in prison, plus 120 months of supervised release. Ag uirre argues on appeal that the 188

- month term of imprisonment is substantively unreasonable , and that two special conditions of supervised release should be

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36

- 3. 

# FILED

APR 5 2016 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

vacated . We affirm in part and vacate and remand in part

. As to the term of imprisonment, Aguir re does not dispute that the Guidelines range was correctly calculated, nor does he argue that there was anything atypical about his case that should take it out of the Guidelines range. Instead, he argues that the Guidelines are themselves substantively unreasonable in light of a recent Sentencing Commission Report criticizing certain child pornography sentencing enhancements

. See United States Sentencing Comm’n, Report to Congress: Fed eral Child Pornography Offenses (Dec. 2012) (the “Commission Report”) , available at http://www.ussc.gov/sites/default/files/pdf/news/congressional

testimony

- and

- reports/sex

- offense

- topics/201212

- federal

- child

- pornography

offenses/Full_Report_to_Congress.pdf

. Although a district court “may vary from the child pornography Gui delines

. . . based on policy disagreement with them, and not simply based on an individualized determination that they yield an excessive sentence in a particular

case . . . . district court s are not obligated to vary from the child pornography Guidelines on policy grounds if they do not have, in fact, a policy disagreement with them.” United States v. Henderson , 649 F.3d 955, 953

- 64 (9th Cir. 2011). Here, the district court considered the Commission Report but it concluded th at a3

Guidelines sentence was appropriate in this case. The district court was under no obligation to concur with the Commission Report’s criticisms and prescriptions and did not err in applying the Guidelines in their current form

. 1 We thus affirm the le ngth of Aguirre’s prison sentence. Aguirre ’s challenge to condition of supervised release number nine also fails. As an initial matter, both parties agree that, despite its reference to “‘[s]exually explicit conduct’ as defined in 18 U.S.C. section 2256(2),” the condition is appropriately limited to pornography. Therefore, to bring the condition into accordance wit h United States v. Gnirke , 77 5 F.3d 1155 (9th Cir. 2015), we construe the condition to apply “(1) to any materials with depictions of ‘sexually explicit conduct’ involving children, as defined by 18 U.S.C. § 2256(2), and (2) to any materials with depiction s of ‘sexually explicit conduct’ involving adults, defined as explicit sexually stimulating depictions of adult sexual conduct that are deemed inappropriate by [Aguirre’s] probation officer. [Aguirre] may not possess, [own, use, view, or read] such materi als, nor may he patronize any place where such materials or entertainment are available.” Gnirke , 775 F.3d at 1166

.

1 Aguirre has not claimed any procedural error.4

Once so defined, we conclude that the district court did not abuse its discretion in finding that the condition is “reasonably related to t he goal[s] of deterrence, protection of the public, or rehabilitation of the offender,” United States v. Wolf Child , 699 F.3d 1082, 1090 (9th Cir. 2012) (alteration in original) (quoting United States v. Collins , 684 F.3d 873, 892 (9th Cir. 2012), and does not “infringe[] more on the offender’s liberty than is ‘reasonabl y necessary’ to accomplish these statutory goals,” id. (quoting 18 U.S.C. § 3583(d)(2)) ; see also United States v. Daniels , 541 F.3d 915, 927

- 28 (9th Cir. 2008); United States v. Rearden , 349 F.3d 608, 619 (9th Cir. 2003 )

. 2 Finally, with regard to condition of supervised release number ten , we first note that the parties have agreed that “business records” refers only to business phone records, not business records generally. The condition shall be so

2 Although Daniels and Rearden were on plain error review, the only issue objected to by Aguirre with respect to condition nine was the scope of the restriction

— an objection cured by our construing the condition consistent with Gnirke

. Aguirre did not obje ct that , even as narrowed, the condition failed to further the purposes of supervised release. This case is thus in a similar posture with respect to that issue as were Daniels and Rearden , even though the government failed to point this out

. See United States v. Murguia

- Rodriguez , – No. 14

- 10400 , 2016 WL 791241, at *6, *6 n.9 (Mar. 1, 2016) (a panel may apply plain error review even when the government has failed to assert that the error in question has not be en preserved).5

construed. We otherwise agree with Aguirre that, as a procedural matter, the portion of condition number ten regarding the monitoring of “all o utgoing or incoming phone calls, ” finds no justification in the record and must be vacated. See Collins , 684 F.3d at 890 (“the district court ‘ need not state at sentencing the reasons for imposing each condition of supervised release, ’ [but] that is only true ‘ if the reasoning is apparent from th e record ’ ” (alteration omitted) (citation omitted) (quoting U

nited States v. Rudd , 662 F.3d 1257, 1260 (9th Cir. 2011) ). Although at oral argument the Government provided several possible reasons why such a condition is necessary, the record is devoid of any indication that the district court considered these

— or any other justifications

— for the condition. We therefore

reman d for reconsideration this portion of the condition. Aguirre’s request that the case be assigned to a different district judge on remand is denied. AFFIRMED IN PART; VACATED AND REMANDED IN PART .