FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 10-50344

Plaintiff-Appellee, D.C. No.

v.  8:08-cr-00209-

JVS-1 TIM JAMES COLLINS,

Defendant-Appellant. OPINION 

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Argued and Submitted

April 11, 2012—Pasadena, California

Filed June 22, 2012

Before: Andrew J. Kleinfeld and Milan D. Smith, Jr.,

Circuit Judges, and Algenon L. Marbley, District Judge.*

Opinion by Judge Marbley

*The Honorable Algenon L. Marbley, United States District Judge for

the Southern District of Ohio, sitting by designation. 

7459
COUNSEL

Jean-Claude Andre, Assistant United States Attorney

(argued); Curtis Arthur Kin, Assistant United States Attorney,

Mieke Biesheuvel, Assistant United States Attorney, Robert

E. Dugdale, Assistant United States Attorney, for plaintiffappellee United States.

Robert Stephen Hanna (argued), for defendant-apellant Tim J.

Collins. 

OPINION

MARBLEY, District Judge: 

Tim James Collins appeals his conviction and imposition of

a 60-month sentence following his entry of a plea of guilty to

a single charge of possessing child pornography that had been

shipped in interstate commerce, in violation of 18 U.S.C.

§ 2252A(a)(5)(B). 

Collins challenges his conviction and sentence on three

bases: (1) the district court’s acceptance of Collins’s guilty

plea violated Federal Rule of Criminal Procedure 11; (2) the

First Superseding Indictment was invalid due to improper

instructions submitted to the grand jury; and (3) the lifetime

term of supervised release imposed by the district court is

unreasonable and unconstitutional. Collins contends that, as a

result of these errors, the district court’s judgment must be

vacated, and he is entitled to negotiate about re-pleading

under the status quo ante immediately after his initial, August

18, 2009, plea. Collins alternatively contends that the lifetime

term of supervised release and certain conditions of release

should be struck from his sentence. 

The district court did not err in accepting Mr. Collins’s

guilty plea, and Collins’s challenges to the grand jury instrucUNITED STATES v. COLLINS 7463
tions were untimely and therefore waived. Accordingly, we

AFFIRM Collins’s conviction. We hold, however, that the

district court committed procedural error by failing to provide

adequate analysis for the imposition of the residency restrictions in Collins’s lifetime term of supervised release. We,

therefore, VACATE the supervised release portion of his sentence, and REMAND the case to the district court to resentence Collins under the First Superseding Indictment. The

district court’s articulated reasons for its imposed sentence

must show that it properly analyzed all the required factors to

be considered under 18 U.S.C. § 3553(a) before imposing

terms and conditions of supervised release which are substantively reasonable, in light of Collins’s offense characteristics

and the goals of sentencing. 

I. BACKGROUND

A. Factual History

On December 19, 2007, an FBI Special Agent, working

undercover, used peer-to-peer network software to view lists

of videos and images stored on Collins’s computer. The agent

downloaded and viewed three images that appeared to be

child pornography. On March 6, 2008, agents executed a federal search warrant at Collins’s residence in Anaheim, California. During the search, law enforcement officers seized

Collins’s computer equipment, including several compact

discs and a Seagate brand hard drive (“the hard drive”). 

A search of the compact discs and the hard drive revealed

images depicting actual minors engaged in sexually explicit

conduct, as well as eleven videos depicting minors engaging

in sexually explicit conduct. Collins was interviewed the day

that his computer media were seized. He admitted to downloading child pornography images for approximately six years

and to searching the internet for child pornography. The

images and visual depictions had been shipped or transported

in interstate or foreign commerce by any means, including

7464 UNITED STATES v. COLLINS
computers. Collins obtained the videos by using a computer.

Collins knew that the videos showed a minor engaged in sexually explicit conduct, and were made using a minor engaging

in sexually explicit conduct. 

Additionally, a woman, “M.A.,” told FBI agents that in

2005, when she was a fifteen year-old girl, Collins traveled to

the Philippines where she lived and had sexual intercourse

with her multiple times knowing that M.A. was only fifteen.

Collins admitted to having had a sexual relationship with

M.A., but disputes that he knew she was underage at the time.

B. Procedural History

On August 6, 2008, a grand jury (“the original grand jury”)

returned a single-count indictment against Collins, charging

him with a violation of 18 U.S.C. § 2252A(a)(5)(B) for possessing child pornography on one of the seized computer hard

drives. On October 2, 2008, the district court empaneled a

new grand jury (“the October 2008 Grand Jury”) and

instructed the new jurors. On June 24, 2009, the October 2008

Grand Jury returned a two-count First Superseding Indictment

against Collins, both counts being for violations of 18 U.S.C.

§ 2252A(a)(5)(B) based on the child pornography material

found in his possession on March 6, 2008. 

On July 15, 2009, Collins and the government entered into

a plea agreement in which Collins agreed “to plead guilty to

count one of the superseding indictment.” In exchange for

Collins’s guilty plea, the government agreed, inter alia, to

move to dismiss the remaining count of the First Superseding

Indictment and not to prosecute Collins for his 2005 sexual

conduct with “M.A.,” or for his possession of additional child

pornography, neither of which had been charged in the First

Superseding Indictment. 

On August 18, 2009, the district court held a change of plea

hearing. After placing Collins under oath, the court thorUNITED STATES v. COLLINS 7465
oughly questioned him and advised him of his constitutional

rights, which he waived. Taking the elements directly from

Collins’s plea agreement, the government recited the elements

required to establish a violation of 18 U.S.C.

§ 2252A(a)(5)(B) for possession of child pornography, as

charged in Count One of both the original and the First Superseding Indictments, and as set forth in the plea agreement.

Collins admitted to the facts and elements of his offense as set

forth in the plea agreement. Collins then re-affirmed his desire

to plead guilty. 

The district court accepted Collins’s guilty plea. In doing

so, however, the court misspoke and, instead of asking Collins

how he desired to plead to count one of the superseding

indictment, the court asked Collins how he desired to plead to

count one of “the indictment.” No objections were raised to

the validity of the guilty plea, and the hearing was adjourned.

Realizing its misstatement, the district court contacted the

parties and scheduled a second hearing for August 31, 2009.

At the August 31, 2009 hearing, the court announced its previous error, and proposed placing Collins under oath again to

clarify that Collins intended to plead to Count One of the First

Superseding Indictment. Collins’s lawyer stated: “We don’t

object to that proceeding.” The government also had no objections. The court then placed Collins under oath and reminded

him about the prior “extensive discussion” at the change of

plea hearing where Collins pled guilty. The court asked Collins if there was anything from their prior discussion that Collins wanted to change. Collins answered, “No, Your Honor.”

The court then stated to Collins that: “at the end [of the

prior hearing], the concluding question was ‘how do you

plead to Count One of the Indictment.’ I made an error. I

should have said the ‘First Superseding Indictment.’ ” The

court asked Collins if he had discussed this issue with his lawyer. Collins responded that indeed he had. The court then

asked the question again, “Sir, how do you plead to Count

7466 UNITED STATES v. COLLINS
One of the First Superseding Indictment?” Collins responded,

“Guilty.” The court accepted Collins’s plea and made several

findings before ending the hearing, including a finding that

Collins “entered his plea freely and voluntarily with a full

understanding of the charges against him and the consequences of his plea.”

On July 12, 2010, the district court sentenced Collins to a

total of 60 months’ imprisonment.1 The district court also

imposed, over the objections of Collins, a lifetime term of

supervised release, and a special assessment of $100. 18

U.S.C. § 3583(k); USSG § 5D1.2(b)(1). 

In the court’s sentencing memorandum explaining its decision to impose a lifetime period of supervised release, the

court cited the “policy of the Guidelines to impose a maximum term of supervised release,” but also indicated it understood the need to “make a particularized determination and

. . . not rely on generalities.” The court explained that the seriousness of Collins’s offense, downloading and sharing a “substantial volume” of “hard core child pornography,” warranted

the need for a life term of supervision. The court added, however, that “[i]f [Collins] demonstrates rehabilitation after a

number of years, he is free to seek termination of supervised

release.”

As part of the life term of supervised release, and again

over the objections of Collins, the district court imposed several special conditions of supervised release. These conditions

include prohibiting Collins from frequenting or loitering

“within 100 feet of school yards, parks, public swimming

pools, playgrounds, youth centers, video arcade facilities, or

1Collins was assigned a Criminal History Category of I. The district

court then adopted a variance from the recommended Sentencing Guidelines range by subtracting two levels on the basis of Collins’s potential

childhood abuse, and his military service. Collins’ 60-month sentence was

three months above the lower level of a Level 25 offense. 

UNITED STATES v. COLLINS 7467
any other places primarily used by persons under the age of

18” (“Condition 11”), as well as a residency restriction,

referred to as “Condition 15,” which provides:

The defendant shall not reside within 2,000 feet of

school yards, parks, public swimming pools, playgrounds, youth centers, video arcade facilities, or

any other places primarily used by persons under the

age of 18. The defendant’s residence shall be

approved by the probation officer, and any change in

residence must be pre-approved by the probation

officer. The defendant shall submit the address of the

proposed residence to the probation officer at least

ten days prior to any scheduled move. 

In response to Collins’s objections to Condition 15, the

court simply responded that, “[t]he short answer is that as a

general matter, Collins must follow the law as a condition of

supervised release, and this restriction is mandated by California law,” referring to California Penal Code section 3003.5,

which imposes a similar 2,000-foot residency restriction on

all registered sex offenders. The court also added that, “[e]ven

if this were not the case, the restriction is a proper measure

to ensure protection of the public given the nature of the

crime, and the Ninth Circuit has approved even more stringent

restrictions.” Collins timely appealed. 

II. JURISDICTION

We have jurisdiction over this appeal from a conviction and

final decision of the district court under 28 U.S.C. § 1291.

III. DISCUSSION

A. Acceptance of Collins’s Plea of Guilty

1. Standard of Review

Federal Rule of Criminal Procedure 11 governs negotiation,

entry and acceptance of pleas. We review an appellant’s sub7468 UNITED STATES v. COLLINS
mission of Rule 11 violations for plain error where the defendant failed to raise them in the district court. United States v.

Dominguez Benitez, 542 U.S. 74, 83 (2004); United States v.

Bowory, 595 F.3d 1045, 1049 (9th Cir. 2010). Under a plain

error standard of review, an error in the district court requires

reversal “only if it affected the defendant’s substantial rights.”

United States v. Monzon, 429 F.3d 1268, 1271 (9th Cir. 2005)

(holding that, to evaluate the effect of a Rule 11 error, “we

must look to the entire record and not to the plea proceedings

alone”). 

For an error to affect substantial rights, “in most cases it

means that the error must have been prejudicial: It must have

affected the outcome of the district court proceedings.”

United States v. Olano, 507 U.S. 725, 734 (1993). Certain

“structural” Rule 11 errors, however, have been deemed so

fundamental as to “undermin[e] the fairness of a criminal proceeding as a whole,” and require reversal “without regard to

the mistake’s effect on the proceeding.” Dominguez Benitez,

542 U.S. at 81. Hence, if the plain error was a structural one,

the existence of prejudice is generally presumed. See United

States v. Sandoval-Mendoza, 472 F.3d 645, 652 (9th Cir.

2006). The Supreme Court has “found structural errors only

in a very limited class of cases.” Johnson v. United States,

520 U.S. 461, 469 (1997) (listing examples of structural

errors). To meet his burden for reversal, the defendant “must

prove that there is a ‘reasonable probability that, but for the

error, he would not have entered the plea.’ ” Borowy, 595

F.3d at 1049 (quoting Monzon, 429 F.3d at 1272).

2. Analysis

Collins alleges three separate errors affecting his plea of

guilty. First, he alleges that the district court was incorrect in

assuming that the August 18, 2009 plea to a charge in the

original indictment was invalid and required correction. Second, Collins claims the district court’s proposing its own resolution of its mistake during the first plea colloquy was a

UNITED STATES v. COLLINS 7469
violation of Rule 11’s prohibition against the court participating in plea discussions, and constituted structural error. Third,

Collins claims the district court again violated Rule 11 by

accepting Collins’s August 31, 2009 guilty plea to Count One

of the Superseding Indictment without advising Collins of the

nature of the charge to which he was pleading. 

We hold that the district court’s conducting a subsequent

hearing to correct the record of its misstatement during the

initial plea colloquy was neither plain error, nor structural

error.

a. Validity of Collins’s Original Plea

Collins alleges that the district court erred by improperly

attempting to correct Collins’s initial plea of guilty from the

August 18, 2009 change of plea hearing. Collins contends that

although he inadvertently pled to the wrong charge at that

hearing—because of the court’s reference to “the indictment”

instead of the superseding indictment—he insists that the initial plea was nevertheless a validly accepted plea. Collins

claims that the plea he entered on August 18, 2009, contravened the language of the plea agreement, and, as such, constituted plain error. 

To establish plain error the defendant must show: “ ‘(1)

error, (2) that is plain, (3) that affected substantial rights, and

(4) that seriously affected the fairness, integrity or public reputation of the judicial proceedings.’ ” Borowy, 595 F.3d at

1049 (quoting United States v. Benz, 472 F.3d 657, 659 (9th

Cir. 2006)). 

[1] The rationale behind Collins’s first assignment of error

is rather tenuous. There is no dispute that the district court

incorrectly stated “the indictment,” as opposed to “the superseding indictment,” during the August 18, 2009 plea colloquy.

Likewise, no party disputes that Collins intended to plead to

Count One of the First Superseding Indictment, as provided

7470 UNITED STATES v. COLLINS
in the plea agreement. Upon realizing its mistake, the district

court called the parties back into court. The court repeatedly

asked Collins if he had any objections to the proposed hearing

to correct the record, to which Collins repeatedly replied that

he did not. The district court, accordingly, made no wrong

assumptions in seeking to correct its mistaken colloquy, let

alone any reversible errors. 

[2] The first two elements of the test for reversible plain

error are met, as the district court admitted its error on the

record, and the error was plain enough. As Collins asserts, the

August 18, 2009 plea contravened the intent of parties

reflected in their plea agreement. Collins is unable to meet the

third element for plain error, however. The subsequent August

31, 2009 hearing corrected the “error,” and Collins has shown

no adverse effect to his substantial rights, nor any effect on

the fairness, integrity or public reputation of the judicial proceedings. Borowy, 595 F.3d at 1049. Even if the original plea

was technically valid, and in contravention of the plea agreement, the court did not proceed under that plea in sentencing

Collins. Moreover, the charges were identical in nature, which

further negates any possibility of prejudice or harm to Collins’s substantial rights. Collins fails to meet elements three

and four of the plain error test.

b. The District Court’s Participation in Plea 

Negotiations

Second, Collins claims the district court violated Rule 11’s

prohibition against the court participating in plea negotiations

by proposing a solution to its mistake of referencing “the

indictment” at the August 18, 2009 hearing. We review this

claim de novo. United States v. Torres, 999 F.2d 376, 378

(9th Cir. 1993). Before we do, however, it bears repeating that

neither Collins nor the government lodged any objections to

the court’s proposal of holding an additional hearing to correct the mistake and ensure the record was clear that Collins

UNITED STATES v. COLLINS 7471
was pleading to the intended charge in the First Superseding

Indictment. 

[3] Rule 11(c)(1) provides that “the court must not participate in [plea] negotiations.” Fed. R. Crim. P. 11(c). And,

indeed, we have interpreted the Rule’s prohibition strictly. See

United States v. Gonzalez-Melchor, 648 F.3d 959, 963 (9th

Cir. 2011) (holding that Rule 11(c)(1) establishes “such a

bright-line rule that a finding of judicial misconduct in connection with a plea proceeding constitutes plain error and

entitles a defendant to withdraw his guilty plea even if the

error is identified for the first time on appeal”) (internal citations and quotations omitted). The Rule’s strict precaution

against judicial involvement in plea negotiations is a safeguard against the “risk of coercion,” see id., which is present

even in cases of seemingly benign involvement by the court.

Collins, however, seeks a finding of judicial misconduct

based on the district court’s efforts to correct a mere misstatement in the original plea colloquy. He insists that the district

court, after identifying that the plea was made to the wrong

indictment, should have “left the resolution to the parties.” 

[4] The district court’s second hearing, to assure that the

record reflected Collins’s plea to the superceding indictment

as his plea agreement had already provided, cannot reasonably be characterized as “participation” in plea negotiations.

There is no evidence or arguments suggesting that the court’s

proposed hearing to enter a new plea had any influence on the

already finalized plea agreement between Collins and the government, which remained intact and unchanged. See United

States v. Frank, 36 F.3d 898, 902 (9th Cir. 1994) (permitting

certain court involvement in the plea process where it “took

place after, not before, the parties had concluded their agreement, and the prosecutor had laid it out in open court”).2

 Had

2

In Frank, where, as here, “the judge . . . was not trying to shape the

agreement or persuade either side to accept it,” Rule 11 is not violated. 36

7472 UNITED STATES v. COLLINS
the court failed to correct its mistake, its erroneous colloquy

would have remained intact, potentially in contravention of

the plea agreement. 

[5] We hold that the court’s proposal to correct a misstatement in the plea colloquy to which all parties agreed, precisely so that the intent of the plea agreement would be

effectuated, does not violate Rule 11’s prohibition of judicial

interference. 

c. The Court’s Failure to Inform Collins of the

Nature of the Charge

In Collins’s third alleged Rule 11 error, he claims the district court failed to advise him properly of the nature of the

charge to which he was pleading at the final, August 31, 2009

hearing. Specifically, Collins complains that the court violated Rule 11 in failing to explain the relationship between the

charge to which he had erroneously pled on August 18, 2009,

and the charge to which he was pleading at the August 31,

2009 hearing. Collins claims this was reversible error despite

admitting that the court explained, at length, the nature and

elements of the charged offense at the August 18, 2009 hearing, and that the charge to which he pled in the original indictment and the charge to which he later pled in the superseding

indictment are identical. 

[6] Rule 11 requires the district court, before it accepts a

defendant’s plea of guilty or nolo contendere, to “inform the

F.3d at 902; Compare United States v. Torres, 999 F.2d 376, 378 (9th Cir.

1993) (district court did not violate Rule 11 where parties had already

“hammered out” the agreement before presenting to sentencing judge, who

then engaged in colloquy to determine the nature of the plea deal); with

United States v. Garfield, 987 F.2d 1424, 1426-27 (9th Cir. 1993) (district

court erred by advising defendant on the merits of pleading guilty); United

States v. Anderson, 993 F.2d 1435, 1436-38 (9th Cir. 1993) (judge violated Rule 11 by stating before plea agreement had been reached that he

would not accept anything less than a guilty plea to all counts charged).

UNITED STATES v. COLLINS 7473
defendant of, and determine that the defendant understands,”

inter alia, “the nature of each charge to which the defendant

is pleading.” Fed. R. Crim. P. 11(b)(1)(G). Though he did not

object at any point during the August 18, or August 31, 2009

hearings, Collins now contends that the colloquy between the

district court and Collins at the August 31, 2009 hearing

failed to satisfy Rule 11’s requirement. 

The adequacy of the district court’s Rule 11 plea colloquy

is subject to our de novo review. United States v. Minore, 292

F.3d 1109, 1115 (9th Cir. 2002). Collins relies on McCarthy

v. United States, 394 U.S. 459 (1969) in demanding that he

be permitted to enter a new plea. In McCarthy, the Supreme

Court held that “a defendant is entitled to plead anew if a

United States district court accepts his guilty plea without

fully adhering to the procedure provided for in Rule 11.” Id.

at 463-64. Rule 11, however, has since been amended, and

now specifically provides that not every violation of its terms

entitles the defendant to withdraw his guilty plea. Rule 11(h)

states that “[a] variance from the requirements of this rule is

harmless error if it does not affect substantial rights.” Fed. R.

Crim. P. 11(h). 

[7] It is true that the district court did not re-conduct the

full Rule 11 colloquy at the August 31, 2009 hearing, which

may have run afoul of Rule 11’s requirements had that hearing been a stand-alone change of plea proceeding. See, e.g.,

United States v. Pena, 314 F.3d 1152, 1156 (9th Cir. 2003) (in

which a more thorough plea colloquy nevertheless “failed to

comply with Rule 11 because the district court never

explained to [the defendant] the nature of the charges against

him”). The court and the parties, however, expressly understood the August 31, 2009 hearing to be a continuation of the

prior change of plea hearing, in which it is undisputed the

court conducted a full plea colloquy. 

At the August 18, 2009, hearing the district court went into

detail regarding the elements of the violation of 18 U.S.C.

7474 UNITED STATES v. COLLINS
§ 2252(A)(a)(5)(B) for possession of child pornography, and

Collins confirmed that he understood the nature of the charge

and facts alleged against him. Then, at the August 31, 2009

hearing, the court suggested, and both parties agreed, that

repeating the prior colloquy was unnecessary since “the

pleading instrument to which [Collins] has pled is the First

Superceding [sic] Indictment.” It was only the court’s omission of the word “superseding” which transformed the plea to

that of the original indictment at the end of the initial change

of plea hearing. 

[8] The charge to which Collins pled from the original

indictment and the charge in the superseding indictment were

identical. Any technical noncompliance with Rule 11 at the

August 31, 2009 hearing, therefore, was harmless, as the outcome of the proceedings would undoubtedly have remained

the same even if the court had decided not to hold the August

31, 2009 hearing. See United States v. Raineri, 42 F.3d 36, 41

(9th Cir. 1994) (“Harmless error analysis usually poses the

question whether the error influenced the decision-maker or

whether the ultimate outcome would have been the same if

the error had not been committed[.]”). There is no evidence

in the record to suggest that Collins would have done anything other than affirm his guilty plea—as he had done at the

prior change of plea hearing—if the court had repeated the

full colloquy over again. 

[9] Because it is abundantly clear from the record of the

August 18, 2009 and August 31, 2009 hearings that the court

adequately informed Collins of, and Collins confirmed he

fully understood, the nature of the charge to which he

intended to plea, and to which he ultimately did plea, any formal deficiencies of the August 31, 2009 discussion were

harmless and do not warrant reversal. Under Rule 11(h) no

reversible error was committed by the abbreviated colloquy in

this case. 

Collins has failed to identify any structural errors committed by the district court in accepting Collins’s plea of guilty

UNITED STATES v. COLLINS 7475
to count one of the superseding indictment, and has failed to

make a showing of prejudice which would render any of the

alleged deficiencies with the court’s procedure in accepting

the plea reversible plain errors. 

B. Instructions Given to the October 2008 Grand Jury

1. Standard of Review

Collins claims, for the first time on appeal, that the district

court’s instructions to the October 2008 Grand Jury were

defective, and as a result the superseding indictment was not

returned by a duly constituted grand jury. Objections to the

indictment raise questions of law which are reviewed de novo.

United States v. Kahlon, 38 F.3d 467, 469 (9th Cir. 1994).

Under Fed. R. Crim. P. 12(b)(3), failure to present objections

based on defects in instituting the prosecution, including

defects in the grand jury proceedings, prior to the start of trial,

constitutes a waiver thereof. Shotwell Mfg. Co. v. United

States, 371 U.S. 341, 362 (1962); Kahlon, 38 F.3d at 469. 

Even where an error in the grand jury instructions is

brought to the district court’s attention prior to conviction,

“dismissal of the indictment ‘is appropriate only if it is established that the violation substantially influenced the grand

jury’s decision to indict or if there is grave doubt that the

decision to indict was free from the substantial influence of

such violations.’ ” United States v. Caruto, 663 F.3d 394, 399

(9th Cir. 2011) (quoting United States v. Navarro, 608 F.3d

529, 539 (9th Cir. 2010)). 

2. Analysis

Collins alleges that the instructions made to the October

2008 Grand Jury were improper for: (1) using mandatory language forbidding the grand jury from considering punishment,

and (2) providing further misleading instructions which

undermined the grand jury’s discretionary function. Collins

7476 UNITED STATES v. COLLINS
alleges that the improper instructions constituted structural

error, and, as a result, Collins cannot be required to plead to

the superseding indictment returned by the October 2008

Grand Jury. 

It is well-established that “[t]he Fifth Amendment may be

violated if the independence of the grand jury in performing

its historical function is substantially infringed.” United States

v. Caruto, 627 F.3d 759, 763 (9th Cir. 2010). In furtherance

of our duty to safeguard the grand jury’s independence, this

Court has condemned instructions to grand juries with impermissible “mandatory” language. See id.

Collins complains that the district court’s instruction to the

jury that “when deciding whether or not to indict, you cannot

consider punishment in the event of conviction,” was

improper because it forbade the jury from considering punishment. The given instruction deviated from the relevant Model

Grand Jury Charge, which uses less mandatory phrasing and

states that, “you should not consider punishment in the event

of conviction.” Model Grand Jury Charge (MGJC) § 10

(emphasis added). The district court also gave instructions

from Model Grand Jury Charges 9,3 and 25,4 which Collins

also claims unconstitutionally limited the grand jury’s autonomous discretion. 

Collins acknowledges that both of these latter instructions

3

“You are not able to judge the wisdom of the criminal laws enacted by

Congress; that is, whether there should or should not be a federal law designating criminal activity—designating activity as criminal. That’s determined by Congress and not for the grand jury.” MGJC § 9. 

4

“Your task is to determine whether the government’s evidence, as presented to you, is sufficient to cause you to conclude that there is probable

cause to believe that the person being investigated committed the offense

charged” MGJC § 25. The district court continued, “[t]o put it another

way, you should vote to indict where the evidence presented to you is sufficiently strong to warrant a reasonable person’s belief that the person

being investigated is probably guilty of the offense charged.” Id. 

UNITED STATES v. COLLINS 7477
have been previously upheld as constitutional. See United

States v. Navarro-Vargas, 408 F.3d 1184, 1202-05 (9th Cir.

2004) (en banc); Caruto, 663 F.3d at 401. Nevertheless, he

challenges them for reflecting the misguided “present legal

culture” that discourages grand juries from exercising robust

discretion, in contrast to what the framers of the Fifth Amendment intended. 

What Collins fails to address, however, is that he did not

timely raise these alleged “structural” errors in the instructions given to the October 2008 Grand Jury in district court

proceedings. Collins provides no defense—presumably

because none exists—as to why he has not waived his challenge to the lawfulness of the grand jury’s indictment. The

Court, therefore, need not take up the substance of Collins’s

arguments, much less re-visit the development of the modern

grand jury, as the Court did at length in Navarro-Vargas,

because Collins failed to preserve these challenges in the

court below. 

[10] Fed. R. Crim. P. 12(b)(3)(A)’s language requires any

motions challenging the “institution of the prosecution,”

broadly, to be raised before trial. This Court has consistently

held that any challenges to the grand jury proceedings are

encompassed within the Rule. See Kahlon, 38 F.3d at 469

(“ ‘[I]rregularities in grand jury proceedings’ are considered

to be defects in the institution of the prosecution within the

meaning of Rule 12(b).”). Prior versions of Rule 12(b)’s language even more unambiguously precluded Collins’s late

challenge to the grand jury’s instructions. 

The pre-2002 version of Rule 12 expressly included any

and all defenses or objections based on defects in the indictment in the class of challenges waived if not brought prior to

trial. The previous Rule’s subsections (b)(2) and (f) stated, in

pertinent part:

(b) any defense, objection, or request which is capable of determination without the trial of the general

7478 UNITED STATES v. COLLINS
issue may be raised before trial by motion. . . . The

following must be raised prior to trial:

(1) Defenses and objections based on

defects in the institution of the prosecution;

or

(2) Defenses and objections based on

defects in the indictment . . .

(f) Failure by a party to raise defenses or objections

or to make requests which must be made prior to

trial, . . . , shall constitute waiver thereof, but the

court for cause shown may grant relief from the

waiver. 

Fed. R. Crim. P. 12 (1991 Rev. Ed.), as excerpted in United

States v. Andrello, 816 F. Supp. 806, 809 (N.D.N.Y. 1993). 

When the Advisory Committee adopted the current version

of Rule 12(b), it specifically stated that the changes were “intended to be stylistic only,” except to “more clearly indicate

that Rule 47 governs any pretrial motions filed under Rule 12,

including form and content.”

5

 Fed. R. Crim. P. 12, Advisory

Committee Notes on 2002 Amendments (adding, further, that

“[n]o change in practice is intended”). 

[11] Having failed to raise the alleged defects in the

instructions to the October 2008 Grand Jury prior to his conviction, and having shown no good cause for granting relief

from Rule 12’s mandated waiver, Collins has relinquished his

opportunity to raise the instructional challenges on appeal. 

5Fed. R. Crim. P. 47 contains guidelines for the form, requirements, and

timing of pleading and pretrial motions submitted to the court. 

UNITED STATES v. COLLINS 7479
C. The Court’s Imposition of a Life Term of

Supervised Release

1. Standard of Review

The Court’s review of Collins’s sentence involves a twostep determination for whether the district court abused its

discretion. First, we review the sentence for any significant

procedural errors. United States v. Carty, 520 F.3d 984,

992-93 (9th Cir. 2008) (en banc). As a matter of procedural

due process, “a sentencing judge must explain a sentence sufficiently to communicate ‘that a reasoned decision has been

made’ and ‘permit meaningful appellate review.’ ” United

States v. Rudd, 662 F.3d 1257, 1260 (9th Cir. 2011); 18

U.S.C. § 3553(a). The sufficiency of a court’s explanation of

its sentence is case specific. See Carty, 520 F.3d at 992. 

In the second step, we review the sentence for its substantive reasonableness, accounting for the “totality of the circumstances” presented to the district court. United States v.

Blinkinsop, 606 F.3d 1110, 1116 (9th Cir. 2010). This Court,

tracking the language of 18 U.S.C. § 3553(a), has held that

“[a] substantively reasonable sentence is one that is ‘sufficient, but not greater than necessary’ to accomplish

§ 3553(a)(2)’s sentencing goals.” Rudd, 662 F.3d at 1260. 

The length of a term of supervised release is reviewed for

its reasonableness using the same, deferential, abuse-ofdiscretion standard used for challenges to any other part of the

defendant’s sentence. United States v. Apodaca, 641 F.3d

1077, 1079 (9th Cir. 2011), cert. denied, No. 11-5314, 2011

U.S. LEXIS 5666 (Oct. 3, 2011). Additionally, we review the

district court’s decision to impose a particular condition of a

term of supervised release for an abuse of discretion. Rudd,

662 F.3d at 1259; United States v. Stoterau, 524 F.3d 988,

1002 (9th Cir. 2008).

7480 UNITED STATES v. COLLINS
2. Analysis

Collins challenges the district court’s procedural and substantive reasonableness in imposing the lifetime term of

supervised release with Condition 15, which prohibits him

from residing within 2,000 feet of parks, schools, and other

child areas, particularly in conjunction with Condition 11,

which prohibits frequenting or loitering “within 100 feet of

school yards, parks, public swimming pools, playgrounds,

youth centers, video arcade facilities, or any other places primarily used by persons under the age of 18.” Collins also

argues that Condition 15 violates his fundamental constitutional rights of travel, association, and enjoyment of property,

as well as his Eighth Amendment right to be free from excessive punishment. 

a. Procedural Reasonableness of the Lifetime Term of

Supervised Release

When reviewing a term of supervised release for procedural

error, “we consider the same factors” that pertain to reviewing

terms of imprisonment. Apodaca, 641 F.3d at 1081. To be a

procedurally proper sentence, the district court must do the

following:

(1) correctly calculate the Sentencing Guidelines

range; (2) treat the Guidelines as advisory; (3) consider the 18 U.S.C. § 3553(a) factors; (4) choose a

sentence that is not based on clearly erroneous facts;

(5) adequately explain the sentence; and (6) not presume that the Guidelines range is reasonable.

Blinkinsop, 606 F.3d at 1114 (citing Gall v. United States, 552

U.S. 38, 51 (2007)).

Collins’s claims of procedural error relate to the burden of

proof that the district court adopted in its determination that

a lifetime term of supervised release with Conditions 11 and

UNITED STATES v. COLLINS 7481
15 was appropriate in this case. The appropriate burden of

proof for a court’s determination during sentencing is a question of law which we review de novo. See United States v.

Treadwell, 593 F.3d 990, 1000 (9th Cir. 2010) (stating that

“[o]rdinarily, a district court uses a preponderance of the evidence standard of proof when finding facts at sentencing”).

[12] Collins claims that the district court improperly presumed the reasonableness of the Sentencing Guidelines’ recommendation of a lifetime period of supervised release, by

treating the lifetime length of supervised release as the “base

line” at the sentencing hearing. For Collins’s offense of possession of child pornography, the Sentencing Guidelines

authorize a term of supervised release for no less than five

years, and the statutory maximum of a life term is recommended. See 18 U.S.C. § 3583(k); USSG § 5D1.2(b). Nevertheless, it would constitute procedural error for the court to

“attach[ ] a presumption of reasonableness to the Guidelines

range or weight[ ] the Guidelines range more heavily than

other § 3553(a) factors.” Carty, 520 F.3d at 994. 

[13] Despite Collins’s claims to the contrary, the court’s

stated reasoning behind imposing the lifetime term as part of

Collins’s sentence shows that the court duly considered

whether the recommended lifetime duration of supervised

release was reasonable. The court made a point to clarify that

it “must make a particularized determination and must not

rely on generalities” in light of “the policy of the Guidelines

to impose a maximum term of supervised release.” The court

then discussed the particular nature and characteristics of Collins’s offense which led it to find a lifetime term warranted,

as Section 3553(a) requires. Finally, the court’s attention to

the particulars of Collins’s case is reflected in its Order allowing Collins to “seek termination of supervised release” after

a number of years. Id.

[14] It is entirely appropriate to do as the court did here

and treat the Guidelines recommendation as “the starting

7482 UNITED STATES v. COLLINS
point and the initial benchmark” for arriving at its sentence,

so long as the court does not simply adopt the recommendation without considering the Section 3553(a) factors. Carty,

520 F.3d at 991. As the trial judge opined, “[t]he court is

mindful that the Guidelines are only a starting point in crafting a reasonable sentence.” Collins’s claim that the court

inappropriately presumed the reasonableness of the Guidelines in arriving at the term of supervised release lacks evidentiary support and is unpersuasive.

b. Procedural Reasonableness of the

Special Conditions of Release

Collins also attacks the reasonableness of the special conditions of his life term of supervised release, in particular Condition 15. Collins claims the residency restrictions of

Condition 15 constitute an “extremely disproportionate effect

on the sentence,” and the district court should have required

the government to satisfy a heightened “clear and convincing”

standard before imposing Condition 15. See, e.g., Restrepo,

946 F.2d at 660; United States v. Berger, 587 F.3d 1038, 1047

(9th Cir. 2009). Collins also insists that the district court’s

justification for imposing the onerous restrictions of Condition 15 was insufficient, and that the court misapplied prior

precedent.

Pursuant to 18 U.S.C. § 3583(d),6 a district court has discre6Section 3583(d) states, in pertinent part, that in addition to the mandatory conditions of release, 

The court may order, as a further condition of supervised

release, to the extent that such condition— 

(1) is reasonably related to the factors set forth in section

[3553(a)] . . . and; 

(2) involves no greater deprivation of liberty than is reasonably

necessary for the purposes set forth in section [3553(a)] . . . and;

(3) is consistent with any pertinent policy statements issued by

the Sentencing Commission pursuant to 28 U.S.C. 994(a); 

UNITED STATES v. COLLINS 7483
tion to impose special conditions of supervised release, so

long as the conditions are: 

reasonably related to the goals of deterrence, protection of the public, or rehabilitation of the offender;

involve no greater deprivation of liberty than necessary to achieve those goals; and are consistent with

any pertinent policy statements issued by the Sentencing Commission.

United States v. Riley, 576 F.3d 1046, 1048 (9th Cir. 2009).

In weighing these factors for a particular defendant, this

Court has held that “the government ‘shoulders the burden of

proving that a particular condition of supervised release

involves no greater deprivation of liberty than is reasonably

necessary to serve the goals of supervised release.’ ” Id.

(quoting United States v. Weber, 451 F.3d 552, 559 (9th Cir.

2006)); see also Rudd, 662 F.3d at 1260 (“The burden of

establishing the necessity of any condition falls on the government.”). 

We reject Collins’s proposed application of the heightened

“clear and convincing” burden to the government’s request

for the lifetime term of release with Condition 15. The clear

and convincing standard has been reserved for “exceptional”

enhancements of the defendant’s offense level calculation.

See United States v. Felix, 561 F.3d 1036, 1047 (9th Cir.

2009). Condition 15 is a special condition of release, not an

enhancement to Collins’s sentence. The clear and convincing

standard, historically, has only been applied to sentencing

courts’ findings in support of offense level enhancements,

never for terms of supervised release. 

[and] any condition set forth as a discretionary condition of probation in section 3563(b) [18 USCS § 3563(b)] and any other

condition it considers to be appropriate. 

7484 UNITED STATES v. COLLINS
Although we decline to impose retroactively a heightened

standard of proof on the government to support its requested

conditions of release, we must still review the district court’s

reasoning for each part of the sentence, including the imposed

conditions of supervised release, for whether the district court

adequately considered the 18 U.S.C. § 3553(a) factors. 

[15] It is well-established law that “it would be procedural

error . . . to fail adequately to explain the sentence selected.”

Rudd, 662 F.3d at 1260 (quoting Carty, 520 F.3d at 993).

While “we have held that the district court ‘need not state at

sentencing the reasons for imposing each condition of supervised release,” id., that is only true “if [the reasoning] is

apparent from the record.” Id. (citations omitted) (concluding

that “[t]he touchstone of ‘reasonableness’ is whether the

record as a whole reflects rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a)”). It is

not clear that the district court provided adequate support for

imposing the highly restrictive supervised release conditions

in this case. 

[16] There can be no doubt that Collins’s conditions of

supervised release impose significant—even extreme—

restrictions on his liberty. The residency restriction effectively

prevents Collins from living in any urban area.7See Rudd, 662

F.3d at 1264 (stating that, additionally, “[s]everal courts have

also found that similar residency restrictions subject defendants to a state of ‘constant eviction,’ because the prohibited

locations could potentially move or open in new places”).

Such a serious restriction requires sufficient explanation, par7The California Coalition on Sexual Offending’s website provides

maps, produced by the Senate Office of Demographics, showing the

exclusion zones pertaining to Cal. Penal Code § 3003.5(b), which prohibits a registered sex offender from residing “within 2000 feet of any public

or private school,” or a subset of parks “where children regularly gather.”

One exclusion zone map for Central California, for example, shows that

only a few isolated areas remain in the Greater Los Angeles area for

defendants to live when subject to the restriction. 

UNITED STATES v. COLLINS 7485
ticularly where, as here, the reasonableness of the restriction

is not at all clear from the record. The district court, however,

justified the residency restriction here by simply stating that

the California Penal Code imposes a similar restriction on all

sex offenders, and without providing any specific facts about

Collins’s case that warranted the restriction. 

While the Guidelines recommend a lifetime term of supervised release for Collins’s class of sex offenders, USSG

§ 5D1.2(b), the particular residency restriction in Condition

15 is not recommended, nor is it listed as one of the standard

optional conditions of supervised release. See USSG

§ 5D1.3(e). Moreover, the Ninth Circuit has recently held

that, a “growing body of empirical research casts serious

doubts on the assumption that persons viewing child pornography on the Internet are equally dangerous and likely to commit serious offenses involving sexual contact as are other

offenders.” Apodaca, 641 F.3d at 1083. 

Here, rather than weighing the requisite 18 U.S.C.

§ 3553(a) factors to determine the appropriateness of the residency restriction, the district court rationalized Condition 15

simply by stating that, “[t]he short answer is that as a general

matter, Collins must follow the law as a condition of supervised release, and this restriction is mandated by California

law.” While the court also added that Condition 15 “is a

proper measure to ensure protection of the public given the

nature of the crime, and the Ninth Circuit has approved even

more stringent restrictions,” it did not at all explain why Collins’s crime, of possessing child pornography, warrants forcing him to live in rural areas, at least 2,000 feet from schools,

parks, public swimming pools, playgrounds, youth centers,

video arcade facilities, or any other places deemed by his probation officer to be “primarily used by persons under the age

of 18.” Id.

[17] Collins’s lifetime term with Condition 15 places his

supervised release in league with the most restrictive terms,

7486 UNITED STATES v. COLLINS
imposed on the most serious child molesters. Collins’s crime

was an internet-only offense, and he has no prior sex crime

convictions. While he admitted to having had a relationship

with the 15-year-old minor, “M.A.,” which arguably may

have provided some support for the restriction, the district

court should have explained why the lifetime term with the

severe residency restrictions “involve[d] no greater deprivation of liberty than is reasonably necessary for the purposes

of supervised release.” Daniels, 541 F.3d at 924; as quoted in

Rudd, 662 F.3d at 1263 (in which the Court held that, “[i]n

the absence of any explanation of how the chosen distance

furthers the purposes of Rudd’s supervised release, the choice

of 2,000 feet appears arbitrary”). 

The district court, however, appears not to have considered

the appropriate sentencing factors when it imposed Condition

15. By only vaguely referencing just one of the factors (protection of minors), the court’s Order “neither communicates

‘that a reasoned decision has been made,’ nor is sufficient to

‘permit meaningful appellate review.’ ” Rudd, 662 F.3d at

1263 (quoting Carty, 520 F.3d at 992).

The district court’s reliance on the 2,000-foot residency

restriction for all registered sex offenders under Cal. Penal

Code 3003.5(b) for justifying its imposition of Condition 15,

is misplaced. We agree with the district court, that, having

been convicted of a sex offense punishable as an offense

described in Cal. Penal Code § 290(c),8 Collins is required to

register as a sex offender in California.9 Once registered as

8Section 290.005(a) provides that any person “convicted in any other

court, including any state, federal, or military court, of any offense that . . .

would have been punishable as one or more of the offenses described in

subdivision (c) of Section 290” shall register as a sex offender. Section

290(c) includes possession of child pornography in violation of Cal. Penal

Code § 311.1 in its list of described offenses requiring sex offender registration. 

9Federal law, in turn, requires that, “[t]he court shall order, as an

explicit condition of supervised release for a person required to register

UNITED STATES v. COLLINS 7487
such, he will be subject to Cal. Penal Code § 3003.5(b)’s residency restriction, which is substantially similar to Condition

15’s.10 See, e.g., U.S. v. Davidson, 246 F.3d 1240, 1243-44

(9th Cir. 2001) (explaining that “Section 290[ ] requires any

person who has been convicted of one of a series of enumerated state law offenses, or any federal offense that would have

been punishable as one of those enumerated state law

offenses, to register as a sex offender for the rest of his or her

life while residing in . . . or . . . while located within California”). 

The residency restriction imposed by the court, however, is

not identical to the California Penal Code’s,11 and even if it

were, the district court still has a duty to analyze the appropriateness of Condition 15 pursuant to the required federal sentencing factors, notwithstanding any related state law

restrictions. See Blinkinsop, 606 F.3d at 1116 (“We assume

that district judges know the law and understand their obligation to consider all of the § 3553(a) factors.”) (internal quotations omitted).

[18] In sum, it was procedural error for the district judge

to impose a residency restriction with Condition 15’s duration

under the Sex Offender Registration and Notification Act, that the person

comply with the requirements of that Act.” 18 U.S.C. § 3583. This was

ordered by Judge Selna, and Collins assented to these requirements in the

proceedings below. 

10Section 3003.5(b) provides, “[n]otwithstanding any other provision of

law, it is unlawful for any person for whom registration is required pursuant to Section 290 to reside within 2000 feet of any public or private

school, or park where children regularly gather.” Cal. Penal Code

§ 3003.5(b). 

11Condition 15 is significantly broader and more restrictive than Cal.

Penal Code 3003.5(b). In addition to requiring Collins to reside at least

2,000 feet from parks and schools, Condition 15 adds to that list “swimming pools, playgrounds, youth centers, video arcade facilities, or any

other places primarily used by persons under the age of 18,” and finally

requiring that any change in residence be pre-approved by his probation

officer. 

7488 UNITED STATES v. COLLINS
and breadth as part of Collins’s federal sentence without an

analysis of the basis therefor per the federal sentencing

regime. While the practical effect of removing the 2,000-foot

restriction from his sentence may be minimal, the Penal

Code’s restriction in Section 3003.5(b) could be amended by

the state legislature to 1,000 feet or “within sight of” children,

during Collins’s life. The statute could also be repealed or

held unconstitutional by a state or federal court. Under his

current sentence, Collins would still be bound by the 2,000-

foot restriction of Condition 15, regardless of what changes

may be made to Section 3003.5(b). Moreover, Collins may

reside in some other state where he must conform to that

state’s law, and not California’s.

[19] We vacate the residency restriction and remand Collins’s sentence to the district court to provide the appropriate

analysis and support for its imposed terms and conditions of

supervised release.

c. Substantive Reasonableness of Condition 15

The next step in our review of Collins’s conditions of

release would be to evaluate them for substantive reasonableness. The sentencing court “enjoys significant discretion in

crafting terms of supervised release for criminal defendants,

including the authority to impose restrictions that infringe on

fundamental rights,” but that discretion “is not, however,

boundless.” United States v. Weber, 451 F.3d 552, 557 (9th

Cir. 2006). In Weber, the Court held that “conditions of supervised release are permissible only if they are reasonably

related to the goal of deterrence, protection of the public, or

rehabilitation of the offender.” Id. at 558. 

There is good reason to suspect that the imposition of the

sweeping residency restriction in Condition 15 for life is substantively unreasonable for Collins’s conviction of possession

of child pornography.12 Because we have concluded the dis12In this past year’s decision, United States v. Apodaca, for example, the

Court questioned the reasonableness of lifetime terms of supervised

UNITED STATES v. COLLINS 7489
trict court procedurally erred by failing to provide adequate

reasons for imposing Condition 15 where the reasons for such

a condition were not clear form the record alone, it follows

that we do not reach the question of the substantive reasonableness of Collins’s conditions of release. We remand the

determination of the substantive reasonableness of Condition

15 to the district court, as part of its reconsideration under 18

U.S.C. § 3553(a) for whether the residency restriction

involves “a greater deprivation of liberty than is reasonably

necessary.” Rudd, 622 F.3d at 1264 (quoting Daniels, 541

F.3d at 924).

d. Constitutional Challenges to Condition 15

Collins raises a number of constitutional challenges to the

restrictions posed by the lifetime term of supervised release

containing Condition 15. Collins claims that Condition 15’s

residency restriction is so overbroad and punitive that it violates four separate fundamental liberty interests: his right to

interstate travel; intrastate travel; freedom of association; and

freedom of assembly. Collins also claims that his fundamental

right to acquire, own, possess and enjoy property is unconstitutionally abridged by Condition 15, because under the condition he must move whenever a restricted child-oriented

establishment is opened within a 2,000-foot radius of his residence. Finally, he contends that the term constitutes excessive

punishment prohibited by the Eighth Amendment.

The Court need not address the constitutional arguments

against Condition 15 at this time, having already decided to

remand the supervised release portion of Collins’s sentence to

release, generally, for possession only child pornography defendants, as

distinguishable from “hands on” or “contact” sex offenders, stating “there

is substantial evidence indicating that the current Guidelinesrecommended sentence for possession-only offenders may be difficult to

support.” 641 F.3d at 1084. 

7490 UNITED STATES v. COLLINS
the district court for reconsideration. The Court also leaves

open, for now, the question of the constitutionality of the California Penal Code 3003.5(b) residency restriction for lowerrisk defendants of Collins’s class, as that restriction was not

objected to by Collins below, and the issue was not brought

before the Court on appeal. 

IV. CONCLUSION

For the foregoing reasons, Collins’s conviction is

AFFIRMED. The portion of Collins’s sentence containing the

lifetime term of supervised release is VACATED and

REMANDED to the district court, with instructions for the

court to consider all the required factors under 18 U.S.C.

§ 3553(a), and adequately articulate its rationale for imposing

a term of supervised release with a duration and special conditions that are reasonable in light of the circumstances of this

case and the goals of sentencing.

UNITED STATES v. COLLINS 7491