NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

MICHAEL LEE MAC CLEARY, 

Defendant-Appellant.

No. 21-50240 

D.C. No. 

3:20-cr-02361-LAB-1 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, District Judge, Presiding

Submitted April 21, 2023**

Pasadena, California

Before: WARDLAW and KOH, Circuit Judges, and MCMAHON,*** District 

Judge.

Michael Lee Mac Cleary pleaded guilty to knowing importation of 

methamphetamine, in violation of 21 U.S.C. §§ 952 and 960. He was sentenced, 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Colleen McMahon, United States District Judge for 

the Southern District of New York, sitting by designation.

FILED

APR 25 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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principally, to a term of 84 months incarceration and a five-year term of supervised 

release that included—among other conditions—a digital search condition. 

Alleging procedural and substantive errors in connection with his sentence, Mac 

Cleary appealed. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

1. The district court did not procedurally err in its consideration of Mac 

Cleary’s medical condition. Mac Cleary’s claim for procedural unreasonableness is 

reviewed for abuse of discretion.2 Although Mac Cleary received inadequate 

medical care for his colostomy bag in the past, the district court’s conclusion that 

he was getting adequate medical treatment in the Bureau of Prisons at the time of 

sentencing was “plausible, rational, and based on the record; therefore, it [was] not 

clearly erroneous.” See United States v. Graf, 610 F.3d 1148, 1158 (9th Cir. 2010) 

(citing United States v. Hinkson, 585 F.3d 1247, 1261 (9th Cir. 2009) (en banc)). 

In particular, the note in Mac Cleary’s medical records concerning his colostomy

bag change—which mentions “ineffective health care maintenance”— refers to his 

1 The parties are familiar with the facts of this case, so we include them only as 

necessary to resolve the appeal.

 

2 The government argues that the procedural errors Mac Cleary alleges are subject 

to plain error review because they were not raised below. See United States v. 

Burgum, 633 F.3d 810, 812 (9th Cir. 2011). However, it appears that Mac Cleary’s 

lawyer did not have a full opportunity to assert her objections, so plain error review 

is inappropriate. Fed. R. Crim. P. 51(b); United States v. Martinez, 850 F.3d 1097, 

1100 n.1 (9th Cir. 2017).
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previous issues with inadequate medical care but does not mention continued 

inadequacy. 

2. The district court properly considered Mac Cleary’schildhood abuse 

when evaluating the 18 U.S.C. § 3553(a) sentencing factors. The presentence 

report indicates that Mac Cleary had suffered sexual abuse, which the court 

expressly recognized in considering Mac Cleary’s history and characteristics.

Given the nature and seriousness of the offense, Mac Cleary’s extensive criminal

record, and that his conviction was for the same offense as his previous conviction 

(only two years prior), the district court did not abuse its discretion by not giving 

“a lot of weight” to Mac Cleary’s abuse as a child. See United States v. Stoterau, 

524 F.3d 988, 1001–1002 (9th Cir. 2008) (explaining that abuse a defendant

suffered as a child, along with other considerations, did not render 151-month 

sentence unreasonable). 

3. The district court did not impose a substantively unreasonable sentence.

Mac Cleary’s sentence is not “shockingly high,” and there is nothing illogical or 

“otherwise unsupportable” about the district court’s 84-month sentence. See United 

States v. Ressam, 679 F.3d 1069, 1088 (9th Cir. 2012) (en banc) (quoting United 

States v. Rigas, 583 F.3d 108, 123 (2d Cir. 2009)); see also Gallo v. United 

States, 552 U.S. 38, 52 (2007) (“[T]hat the appellate court might reasonably have 
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concluded that a different sentence was appropriate is insufficient to justify 

reversal of the district court.”). 

Mac Cleary received a sentence at the low-end of the Sentencing Guidelines. 

The district court expressly considered the range of sentencing factors, including

the nature and seriousness of the offense, as well as Mac Cleary’s history and 

characteristics, and concluded that a within-Guidelines sentence was appropriate.

See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) (“[A] 

Guidelines sentence will usually be reasonable.”) (internal quotation marks and 

citations omitted).The offense was Mac Cleary’ssixth felony conviction and the

court found that it was part of a “pattern of continuing criminal activity” that was

“getting more serious.” Mac Cleary attempted to import distributable quantities of

methamphetamine twice in a span of two years, and he had not been deterred by a 

lesser sentence.

4. The computer search condition in Mac Cleary’s written judgment is not 

unlawful. Supervised release conditions are reviewed “deferentially, for abuse of 

discretion.” United States v. Weber, 451 F.3d 552, 557 (9th Cir. 2006). Whether a 

written judgment conflicts with an oral pronouncement of sentence is reviewed de 

novo. United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006). Where a 

district court’s oral pronouncement of sentence is “ambiguous,” the written 
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judgment controls to the extent that it clarifies that ambiguity. United States v. 

Munoz-Dela Rosa, 495 F.2d 253, 256 (9th Cir. 1974). 

The district court stated at the hearing that Mac Cleary would be “subject to 

search of his person, his property, his residence, and his vehicle by the probation 

officer.” The court’s written judgement merely clarifies what “property” was 

subject to search, including not only “residence” and “vehicle” (both of which 

were mentioned at sentencing), but also “house” and “papers,” as well as 

“computers” and “electronic or digital storage devices.” At most, the court’s oral 

pronouncement is ambiguous about whether the word “property,” includes 

computers and digital storage devices. See United States v. Allen, 157 F.3d 661, 

668 (9th Cir. 1998) (“[An oral sentence] is ambiguous when it is capable of two or 

more different constructions, both of which are reasonable.”). But “where there is 

an ambiguity in the oral pronouncement of a sentence, [the] unambiguous written 

judgment controls.” Fenner v. U.S. Parole Com’n, 251 F.3d 782, 787 (9th Cir. 

2001); see also Green v. United States, 447 F.2d 987, 987 (9th Cir. 1971) (“That 

the sentence in writing should be referred to in order to resolve ambiguities in the 

oral pronouncement is well settled.”). 

Mac Cleary alternatively argues that the district court erred in imposing the 

computer search condition because the court did not articulate a nexus between the 

search condition and the sentencing goals set forth at 18 U.S.C. § 3583(d). “The 
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law only requires some nexus between the computer search condition and 

furthering ‘the goal of deterrence, protection of the public, or rehabilitation of the 

offender.’” United States v. Bare, 806 F.3d 1011, 1019 (9th Cir. 2015) (quoting 

United States v. T.M., 330 F.3d 1235, 1240 (9th Cir. 2003)).

The search condition here applies only if “reasonable suspicion exists that 

the offender has violated a condition of his supervision and that the areas to be 

searched contain evidence of this violation,” and the supervised release conditions 

are themselves designed to deter the defendant from further criminal conduct, to 

protect the public, and to encourage defendant’s successful rehabilitation. See

United States v. King, 608 F.3d 1122, 1131 (9th Cir. 2010) (affirming a 

reasonable-suspicion-based search condition as “reasonably related to protecting 

the public and preventing recidivism”). Accordingly, the required nexus between 

the search condition and the goals of probation is satisfied.

AFFIRMED.