F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee

,

v.

I B R A H I M F A H A B B A R

E , Defendant-Appellant

. No. 14-10475

D.C. No. 3:12-cr-08142-NVW -1

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na N eil V. W a k e , District J udg e, Presiding

Arg ued and Submitted Aug ust 13, 2015—San F rancisco, California

F iled November 24, 2015

B efore: Alex Koz inski and Richard C. Tallman, Circuit J udg es, and L e e H. Rosenthal, * District J u d g e

.

O pinion by

J udg e Tallman; Dissent by

J udg e Koz inski

* T h e Ho n orab le L ee H. Ro sen th al, Un ited S tates District J u d g e f o r th e So u th ern District o f

T ex as, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. B A R E 2

SUMMARY * *

Crim inal Law

The panel a ffirmed a sentence imposed upon a defendant,

a non-I ndian who lives on tribal land, f or two counts of being

a felon in possession of a firearm in violation o f 1 8 U

. S.C. §§ 922(g )(1) and 924(a)(2).

The panel held that the district court d id not err in apply ing a 4-level e nhancement under U.S.S.G. § 2K2.1(b)(6)(B ) for use of a f i r e a rm in connection with another felony offense. T h e panel held that due to the Assimilative Crimes Act, it d o e s not matter whether the requisite felony offense occurred on tribal lands or within the state’s jurisdiction in order to apply the § 2K2.1(b)(6 )(B ) enhancement. The panel concluded that the d istrict court therefore properly applied the e n hancement based on the defendant discharg ing a firearm over the head o f an I ndian while o n t he Navajo Reservation, which if committed

e lsewhere in Ariz ona, would qualify as felony disorderl y conduct under Ariz ona Revised Statutes § 13-2904(A)(6).

The pane l h eld that the district court did not a buse its discretion b y imposing a condition of supervised release permitting searches of the defendant’s computers and other electronic d evices by a probation officer. The panel held that

so long a s a district c o urt makes a factual finding establishing

some nex u s between computer u se and o n e of the g oals

a r t iculated in 18 U.S.C. § 3553(a)(2)(B ), (a)(2)(C), o r

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. B A R E 3

(a)(2)(D), it is not a

n abuse of discretion for a district court to impose a con dition of supervised r e lease permitting the search of a defendant’s personal computers. T he panel h eld that the dis t r i c t court’s finding that a nex us ex isted b etween the defendant’s potential c o m p u t er use while he remains under supervised release a n d t h e need to deter h is future criminal conduct—i.e., repeating the possession and pawning of prohibited firearms—was not clearly erroneous a nd was well-supported by the facts.

J udg e Koz inski dissented from the portion of the opinion approving the supervised release c o ndition. H e w rote that the m a jority disreg a

rds the c ommand in 18 U .S.C. § 3583(d)(2)—that supervised release conditions impose “ no g reater deprivation of liberty than is reasonably necessary ”
to achieve the g oals of su p e r vised release—by allowing probation officers to search the defendant’s computer at any time, for any reason, even thoug h the defenda n t d i d not use

a computer to carry out his crime, a nd (so f a r a s t he panel knows) did not even o wn a computer w hen he c ommitted the offense.

COUNSEL

Keith J

. H ilz endeg er (arg ued)

, A ssistant F ederal Public Defender; J on M. Sands, F ederal Public Defender, Phoenix

, Ariz ona, for Defendant-Appellant.

L acy Cooper ( arg ued), Assistant United States Attorney ; J oh n S. L e onardo, United States Attorney ; Mark S. Kokanovich, A s s istant United States Attorney
, D eputy Appellate Chief, Phoenix , Ariz o na, for Plaintiff-Appellee.U N I T E D S T A T E S V

. B A R E 4

OP INION

TAL L MAN, Circuit J u dg e:

On December 1 3
, 2 0 12, a jury convicted I brahim F ahab B are—a n o n

- I ndian who lives on tribal land with his

c o m mon-law wife—of two counts of being a f e lo n i n possessi o n o f a firearm. B are challeng e s his 4-level sentencing e nhancement for his use of a f irearm in connection with another f

e l ony offense, as well as his condition o f supervi s ed release permitting searches of his computers a nd other electronic devices b y a United States Probation O fficer. W e 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 o rder to apply an enhancement for d ischarg ing a firearm under United States Sentencing Guidelines § 2K2.1(b)(6)(B ). W e f urther hold that so long as a district court ma k es a properly supported f

a c tual finding from the record before it, establishing some nex us between c omputer use and the need for the sentence imposed to accomplish d e terrence, protection of the public, o r rehabilitation of the d e f e n d ant, it is not an abuse of discretion for the district c ourt to impose a condition of supervised release p e r m i tting the search of a defendant’s personal computers. B ec a u s e t h e district court made such a permissible f

a ctual finding establishing the n ex us h ere, a nd because B are is subject to punishment for committing the felony offense of disorderly conduct involving w e a p o ns in connection with h is felon in posses sion conviction, we affirm.

I

On April 9, 2012, N av a

j o T ribal Police responded to a call repor ting shots f

ired at B are’s r esidence located on theU N I T E D S T A T E S V

. B A R E 5

Navajo Reservation in W hippoorwill, Ariz ona. 1 Witnesse s reported to officers that B are and Keithaniel B eg ay beg a n to arg ue in the threshold of B are’s r e sidence over B are’s r efusal
t o provide cig arettes to an intox icated B eg ay

. As t h e arg ument escalated, B are pulled out a pistol and pointed it at B eg ay

. Un a r

med, B eg ay turned and started to walk away from the residence when B are fired a shot over B eg ay ’s head. According to one of B eg ay ’s sisters, B are a l so threatened to kill B eg ay

. Another sister—who is also B are’s neig hbor— reported that B are threatened her by warning

, “You know I can kill y ou.”

Ba r e ’ s common-law wife c o nsented to a search of their shared residence. Officers recovered a nine-millimeter J imenez Arms pistol inside a bag of dog food located in the dining room, as w ell as one spent shell c asing located on the
g round outside the home. After ig noring multiple commands
to submit to arrest, the o fficers pepper spray ed B are 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 c o u r t alleg ing B are c ommitted a felony f irearms offense. B ecause B are failed to appear in c o u r t, federal
ag ents went to his r esidence w ith an arrest warrant. W h en the
ag ents approached, B are ran inside the residence, locked the front d oor, and beg an destroy ing items. After B are unlocked

1 T o th e ex t en t w e ref

er to f acts co n tain ed in th e P resen ten ce R ep o rt to d iscu ss relev an t p o rtio n s o f B are’ s o f f en se co n d u ct an d crim in al h i s to ry , w e p artially lif

t th e o rd er sealin g th e P resen ten ce Rep o rt. T h e Presen ten ce Rep o rt w as ex

p ressly ad o p t e d a n d co n sid ered b y th e district co u rt in f ash io n in g th e ap pro p riate sen ten ce an d co n d itio n s at issu e h ere.U N I T E D S T A T E S V

. B A R E 6

the door and emerg ed from the residence, a ge n t s took him into custody and searched the home. The search revealed:

An Elk River Tool and Die I nc. model ERTD AK47 7.62 caliber [ assault] r ifle with an attached mag az ine loaded with 47 r ounds o f 7.62x 39 ammunition[ ;] a Savag e model 110E .30-06 caliber r ifle with six rounds attached to t h e butt o f the r ifle,

. . . a B B handg un, tw o ammunition mag az ines, 81 rounds of various brand 9-millimeter ammunition, 50 rounds o f Reming ton .45 caliber ammunition, and 50 rounds of Reming ton .32 caliber ammunition.

The ag e nts also found pills, drug s, a dig it a l scale, and a financial ledg er “titled ‘My Money ’ with names and numbers

nex t to the names.” B are admitt e d h e knew he c ould not possess firearms due to prior felony convictions. 2

B a re denied ownership of the weapons. He claimed two of the firearms belong ed to family members, a nd the r e st “were in h is possession as they were ‘pawned’ as part of his self-employ ed, in-hom e p awn business.” B are’s c ommonlaw w ife a lso told i n v estig ators during an interview that she “believed the financial ledg er discovered in the residence was

a list of B are’s pawn c u s t o m ers.” She acknowledg ed her prior aw a r eness of the firearms that had been found in their home and t o l d a gents she thoug ht B are had “taken them in pawn.”

2 B are w as co n v i c t e d i n 20 0 0 f o r p o ssessio n o f b u rg lary to o l s, an d in 2 0 0 1 an d 2 00 2 f

o r resistin g arrest, all f

elo n ies.U N I T E D S T A T E S V

. B A R E 7

O n December 13, 2012, a jury found B a re g uilty of t w o counts of being a felon in possession of a firearm in violation of 18 U.S.C. §§ 922(g )(1) and 924(a)(2).

II

The district court initially sentence d B are on April 8, 2013. I t applie d a base o ffense level of 22 after treating B are’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, p ossession, o r transportation o f firearms o r ammunit i o n” if “the defendant committed any part of the i n s tant offense subsequent to sustaining o ne f elony con v i c t i o n of

. . . a crime of violence”). I t also app l ied a 2-level enhancement because th e o ffense involved at least three firearms. See id. § 2K2.1(b)(1)(A). At the time o f Ba re’s initial sentencing

, the United States Probation Office did not recommend, a

nd the district court did not therefore a d o p t , a 4-level enhancement for the use o f a fi r earm in connection with another felony offense. See id. § 2K2.1(b ) (6)(B ). B are’s total offense level (24), coup l e d with his criminal history categ ory ( I I ), resulted in an advisory Guidelines r ang e of 57–71 months.

At sentencing

, the district court ex plained B a re’s offense

was “perhaps one of the worst felon in posses s i o n c a ses I have seen in my nine y ears as a judg e of this c o u r t

. . . because of the leng th, the awareness of the wrong fulness, the commercia l possession of taking of firearms, [ and] the discharg e of the firearm.” I t sentenced B are to 57 months imprisonment. I n ad d i t ion, the district court imposed a computer search condition of supervised release. I t overruled B are’s objection to this condition, ex pressly finding a nex us between B are’s operation of a p awn business involvingU N I T E D S T A T E S V

. B A R E 8

firearms and the abi l i t y t o store records related to that business on computers or other electronic d evices: “I do see

a nex us h e r e

. . . because there was a commercial contex t to

w hat he was doing that g oes d irectly to the offens e i n possession.”

B a re appealed his conviction and sentence. United States

v. Bare
, 583 F

. App’x 721, 722 (9th Cir. 2014). W e affirmed hi s c o nviction, but vacated his sentence because the district
court erred when calculating his base offense level. Id. at 723–24. W e held B are had not previously been c onvicted o f a crime of violence, which “mig ht well [ have] affect[ ed] the district court’s s e n t encing decision.” Id. at 724; see also United States v. Flores-Cordero

, 7 2 3 F.3d 1 085, 1088 (9th Cir. 2013) (“[ A] n Ariz o na convicti o n f o r resisting arrest cannot be considered categ orically a crime of violence under the federal Sentencing

Guidelines.”).

B a re’s resentencing took place on October 2 1, 2014. Upon r emand, B are’s corrected b a se offense level was 20. See U.S.S.G. § 2K2.1(a)(4). The d ist r ict court once ag ain applied a 2-level enhancement because the offense involved
at least three firearms. See id. § 2 K2.1(b)(1)(A). I n addition, it applied the 4-level enhancement f or the use of a firearm in connection with another felony o ffense—disorderly conduct in violation of Ariz ona Revised Statutes § 13 -2904(A)(6). See id. § 2K2.1(b)(6)(B ). Probation ex plained it was an error to fail to include this enhancement in B are’s orig inal Presentence Report. B are’s resulting total offense level was 26, with an advisory

Guidelines rang e of 70–87 months.

The district court incorporat e d its view that the “comments in the first sentencing [we] re all still correct,” a nd emphasiz ed:U N I T E D S T A T E S V

. B A R E 9

[ A] s I remarked the l a s t time, I think this is probably the most serious f elon in possession

case that I have seen in my y ears on the Court,
most serious in terms of not just possession but d ischarg ing the firearm in a n environment of uncontrolled ang er wit h a history o f uncontrollable ang er; a history of violence, fortunately

, violen ce that didn’t result in any serious injury ; but the history of pr ior incarcerat i o n with a string o f discipline violations during the prior incarceration.

So this is a case that’s really the top end of the chart in ter m s of the seriousness of the offense, the need f

or the sentence to respect the seri ousness of the offense, to promote respect for the law, to pro v i d e deterrence to [ B are]
, is critically important for the safety o f the community

. . . .
Recog niz ing B are’s recent success and lack of disciplinary infractions while in custody on the latest charg es, the district court sentenced him to 54 months imprisonment.

F inally

, the district court reimposed the computer search condition of supervised release: “You shall submit y our person, property , ho u s e, r e sidence, vehicles, papers, computers as defined in 18 U.S.C. § 1030(e)(1), other electronic communications or data storag e devices or media,

or office, to a search con ducted by a probation officer.

. . . You shall warn any other occupants that the p remises may be subject to searches p ursuant to this condition.” B are objected
t o t h e p o rtion of this condition as it related to computers o r “data compilations,” but did not object to the other aspects o fU N I T E D S T A T E S V

. B A R E 10

the search c ondition. 3 The district court overruled B are’s objection, finding that “in lig ht of the fact that Mr. B are was taking firearms in con n ec t i o n with a business a ctivity to pawn, it’s appropriate to search computers where ty pic a l l y such records are often kept.”

III

“[ W ] e review the district court’s interpretation of the Sentencing Guidelines de novo.” United States v

. Valenzuela

, 495 F

. 3 d 1127, 1130 (9th Cir. 2007) ( quotation omitted). “W e review conditions of supervised r e l e a se for abuse of d iscreti o n

. ” United States v

. Betts
, 511 F .3d 872, 874 (9th Cir. 2007). “I n apply ing this standard of review, ‘we
g ive considerable deference to a district court’s determination of the appropriate supervised release conditions,’ recog niz ing that ‘a district court has at its d isposal all of the evidence, its

own impressions of a defendant, and wide latitude.’” United S tates v

. S

toterau , 524 F .3d 988, 1002 ( 9th Cir

. 2 0 0 8 ) (quoting United States v. W eber

, 451 F .3d 552, 557 (9th Cir. 2006)).

IV

A 4-level enhancement is appropriate when the defendant “[ u] sed o r possessed any f i rearm or ammunition in connection with another felony offense[ .] ” U .S

. S .G. § 2K2.1(b)(6)(B ). Such a “fe l o n y offense” “means any F ederal, state, o r local offense

. . . p u nishable b y imprisonment for a term ex ceeding one y ear, reg ar d less o f

3 Du rin g o ral arg u m en t, Bare co n f irm ed th at h e ch allen g es th e co n d itio n

o n ly w ith resp ect to co m

p u t ers o r electro n ic d ev ices.U N I T E D S T A T E S V

. B A R E 11

whether a criminal charg e was b r o u ght, or a conviction obtained.” Id. § 2K2.1 cmt. 14(C).

B a re’s actions, if committed elsewhere in Ariz ona, would qualify as felony disorderly conduct under Ariz o n a Revised Statutes § 1 3-2904(A)(6) f o r “recklessly handl[ ing ], display [ ing ] or disc h arg [ ing ] a d eadly or dang erous instrument.” S

ee Ariz

. Rev. Stat. § 13-29 0 4(B ) (classify ing disorderl y c o n duct under subsection (A)(6) as “a class 6 felony ”). Be c a use B are, a non-I ndian, d ischarg ed a firearm over the head of an I

ndian while on the Navajo Reservation, he is subject to punishment in I n dian Country —by the United States—which incorporates in the f ederal offense the elements of Ariz ona’s disorderly conduct sta t ute u nder the ACA. See 18 U.S.C. §§ 13, 1152; United States v. Marcyes
, 557 F .2d 1361, 1364 (9th Cir. 1 9 7 7 ) (“[ T] h e ACA is a g eneral law of the United States made app l i cable to I ndian reservations by 18 U.S.C. [ §] 1 152.”); see also United States

v

. K aufman

, 862 F .2d 2 36, 237–38 ( 9th Cir. 1988) (per curiam) (finding the ACA a ppropriate to punish a person w ho purposefully pointed a firearm at another person in violation of an Oreg on statute while “within a federal enclave”).

The district court properly considered what is otherwise

a felony violation of Ari z ona Revised Statutes § 13- 2904(A)(6), which supported its applicatio n o f the enhancement. See United States v

. Turnipseed

, 159 F .3d 383, 384, 386 (9th Cir. 1 98 8 ) (upholding a pplication o f enhancement where d efendant fired a h andg un in the direction o f sev e ra l y ouths in violation of a W ashing ton assault statute). W e 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 n e ar B eg ay during their altercation.U N I T E D S T A T E S V

. B A R E 12

V

“The principal statutory provision that constrains the district court’s discretion to impose conditions of supervised release is 18 U.S.C. § 3 583(d).” Stoterau
, 524 F .3d at 1002. “[ T] he conditions imposed are p ermissible only if th e y a re reasonably related to the g oal of deterrence, protection of the public, o r 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 offe n se f or which [ the defendant] was

conv i c t ed a s long as they satisfy any o f the conditions set forth [ in § 3583(d)(1)]

. ” Id. ; s e e a l s o United States v

. Blinkins o p , 6 0 6 F .3d 1110, 1119 (9th Cir. 2010) ( “‘A condition of supervised release d oes not have to be r elated to the offense of conviction,’ because the sentencing j u d g e is

s t atutorily required ‘to look forward in time to crimes t h at may b e committed in the future’ by the convicted defendant.” (quoting United States v. W ise
, 391 F .3d 1027, 1031 (9th Cir. 2004)).

A

W h ile we have on occasion vacated conditions o f supervised r e l ease limiting or restricting the ability to use computers and access the I nternet, we h a ve n ot taken such a heavy hand with r espect to g e neral search conditions o f personal computers. Compare U nited States v. Barsumyan
, 517 F .3d 1154, 11 6 1 ( 9 t h Cir. 2008) (“[ A] mere nex us b etween the crime a

nd a computer does not ju s t i f y proscribing the use of any thing containing a circuit b oard o r

m icrochips.”), with United States v. Morris
, 485 F

. A p p ’ x 213, 216 ( 9th Cir. 2012) (“Morris has cited no a uthority that clearly supports her arg ument that a suspicionless compu t erU N I T E D S T A T E S V

. B A R E 13

search-and-seiz

ure co n dition may not be imposed on a defendant who only tang entially made u se of a computer in
t h e course of her crime, nor authority that holds that t h e district court’s computer search conditions are impermissibly broad.”).

W e h o l d t hat so long as a district court makes a f actual findin g establishing some nex us b etween computer use a nd

one of the g oals articulated in 18 U.S.C. § 3553( a ) ( 2 ) (B ), (a)(2)(C), o r (a)(2)(D)—which was amply supported by the record h e r e

— i t 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 United States v. T

e r rigno
, 838 F .2d 371, 374 (9th Cir. 1 988) (uphold i n g p r o b ation condition with “a reasonable nex us with the twin g o als of probation, rehabilitation and protection o f the public”); see also United States v. Hinkson

, 5 85 F .3d 1247, 1264 (9th Cir. 2009) (en banc) (ex p l a i n i ng that when reviewing a district court’s a c tions for abuse of disc r e tion, “we look to whether the district court’s finding s of fact, and its application of those finding s of fact

. . ., were illog ical, implausible, or w ithout support in infere n c e s t hat may be drawn from facts in the record”). I n articulating this rule, we

are g uided b y our prio r d e c i s ions in United States v

. Sales

, 476 F .3d 732 (9th Cir. 2007), and United Sta t e s v

. B etts , 511 F

. 3d 872 (9th Cir. 2007). W e h eld in S ales that a condition permitting the search and seiz ure of any computerrelated d evice “ used by the defendant” was overbroad because it a

pplied to computers u sed f or work o r personal
purposes, w hether owned by the defendant or others. 476 F .3d at 734, 7 37. F or that r eason, we limit our holding to personal computers or electronic devices over w hich a defendant has control and where he has both the oblig ationU N I T E D S T A T E S V

. B A R E 14

and the ability to inform o ther users that the computers o r devices may

be subject to search.

I n B etts , w e affirmed a condition for warrantless searches “at any time” o f the defendant’s “person and property ,” where “property ” presumably included computers. See 5 11 F .3d at 876. B e cause “ [ p ] e o p le on supervised release have not completed their sentences, they are serving them,” w e drew

a parallel between state parolees and f ederal felons who a

re out on supervised release. 4 Id. T h erefore, in the wake o f Samson v

. California

, 547 U.S. 843 (2006)—which held that “[ i] mposing a reasonable suspicion requirement

. . . would
g ive parolees g re ater opportunity to anticipate searches a nd conceal criminality ”—we concluded that “[ w] e cannot charact e r i z e the judg e’s ex ercise of discretion as an abuse,

even thoug h it is v ery intru s ive.” B e tts , 511 F .3d a t 876. 5

4 W e rej ect B are’ s assertio n o f t h e Fo u rth A m e n d m e n t p ro tectio n s

o u tlin ed in Riley v. Ca lifo rn ia
, 1 3 4 S. Ct. 2 4 7 3
, 2 4 8 8

– 8 9 (2 0 1 4 ). He d oes

n o t w arran t th e sam e lev el of p ro tectio n s as arrestees b ecau s e—as a

co n v icted f

ed eral p riso n er still serv in g a p o rtio n o f h is sen ten ce—h is Fo u rth A m en d m en t rig h ts are d im in ish ed

. S ee Hu d so n v

. P a lmer

, 4 6 8 U.S. 5 1 7 , 5 2 4 (1 9 8 4 ) (“ [W ]h ile p erso n s im p riso n ed f

o r crim e en

j o y

m an y p ro t ectio n s o f th e Co n stitu t io n , it is also clear th at im p riso n m en t carries w ith it th e circu m scrip tio n o r lo ss o f m an y sig n if ican t rig h ts. T h ese co n strain ts o n in m ates, an d in so m e cases th e co m p lete w i th d raw al

o f certain rig h t s, are j u stif

ied b y th e co n sid eratio n s u n d erly in g o u r p en al
sy stem .” (q u o t atio n an d citatio n s o m itted )); S a mso n v. Ca lifo r n i a , 5 4 7 U.S. 84 3
, 8 5 3 (2 0 0 6 ) (“ [T ]h is Co u rt h as rep eated ly ack n o w led g e d t

h a t

a S tate’ s i n terests in red u cin g recid i v ism an d th ereb y p ro m o t i ng rein teg ratio n an d p ositiv e c i t izen sh ip am o n g p ro b atio n ers an d p aro lees

w arran t p riv acy in tru sio n s th at w o u ld n o t o th erw i se b e to lerated u n d er th e Fo u rth A m en dm en t.”).

5 “ Calif o rn ia l a w p ro v id e[d ] th at ev ery p riso n er elig ib le f o r release on state paro le ‘ sh all ag ree in w ritin g t o b e su

b j ect to search o r seizu re

. . . at

an y tim e o f th e d ay o r n ig h t, w ith o r w i th ou t a search w arran t an d w ith orU N I T E D S T A T E S V

. B A R E 15

Once a d istrict court meets the n ex us r e quirement outlined above, then, under Be t t

s , a g eneral search provision of a d efendant’s computers or other electronic devices d oes n o t amount to an abuse of discretion.

B

The d istrict court made a f a ctual f inding that a nex us

ex isted here between B are’s potential computer use while he remains under supervised release and the need to deter his future c r i minal c onduct, i.e., repeating the possession a nd pawning of prohibited firearms. W e disturb the nex us finding only if it is clearly erroneous. S ee H inkson

, 585 F .3d at 1259. The district c ourt’s nex us finding was not clearly erroneous and, in fact, was well-supported by the facts of the c ase. A s articulated by the Government during B are’s orig inal sentencing

, evidence ex isted that B a re kept paper records of his illicit f

irearms pawn business. Permitting a search of only
paper r ecor d s

—

but not computers—mig ht enable B are to evade discovery of r ecidivist a c tivity by switching his records into an e lectronic format. Allowing such a loophole to ex ist would, as d e n ounced in S amson , g ive B are a “g reater opportunity to anticipate searches and conceal criminality

. ” 547 U.S. at 854. 6 To ill u s t rate, we will never know what

w ith o u t cau s e.” S

amso n , 5 4 7 U.S. at 84 6 (q u o tin g Cal. P en a l Co d e § 3 0 6 7 (a) (2 0 0 0 )); see a lso Cal. P en al Co d e § 3 0 6 7 (b )(3 ) (2 0 1 5) (req u i rin g n o tice to an y in m ate elig ib l e f o r release o r p aro le “ th at h e o r sh e is su b j ect to search o r seizu re . . . at an y tim e o f th e d ay o r n ig h t, w ith

o r

w ith o u t a search w arran t o r w ith o r w ith o u t cau s e.”).

6 T h e d i ssen t m isco n s tru es o u r ratio n ale. See Dissen t at 1 9

. T h e d istrict

co u rt d id n o t l o o k to w

h eth er t h e “ def en d an t’ s crim e co u ld b e co m m i tted

w ith th e h elp o f a co m

p u ter” o r “ h y

p o th esi[ze] ab o u t h o w th e crim e m ig h t h av e b een co m

m itted .” Id

. at 1 9

. In stead

, th e d istrict co u rt p ro p erlyU N I T E D S T A T E S V

. B A R E 16

i n criminating e vidence B are destroy ed while he k e pt a rrest i n g federal officers at bay

. Althoug h the dissent requires a direct nex us between the offense conduct and the computer search condition, th e law does not. 7 T.M.
, 330 F.3d at 1240 ( “The supervised release

con d i t i ons n eed not r e late to the offense for w hich [ the

lo o k ed “ f o rw ard in tim e to crim es th at m ay b e co m m itted in th e f

u tu re,”

as 1 8 U.S.C. § 3 5 5 3 (a)(2 )(C) req u ires. W ise
, 39 1 F.3 d at 1 0 3 1

. Un der th e d i s s en t’ s ratio n ale, t

h e co m p u ter search co n d itio n w as o n ly ap p ro p riate if B are u sed a c o m

p u t e r i n th e o f

f en se. B u t t

h e d istrict co u rt w as n o t restricted to im

po sin g co n d itio n s th at w o u l d p rev en t “ f u rth er crim es o f th e d ef en d an t ” th at w ere id en tical to h is o f f en se. T h e stan d ard f

or im p o sin g th e co m p u ter s earch co n d itio n is clear: th e co n d i tio n m u st b e “ reaso n ab ly

re l a t e d ” to p rev en tin g an d d eterrin g f u rth er crim in al co n d u ct. 1 8 U.S.C. § 3 5 8 3(d )(1 )

. T h e d istrict co u rt m et th at stan d ard h ere.

7 T h e d issen t cites t

w o cases f

ro m a Calif

o rn ia co u rt o f ap p eal to su p p o rt th e p o sitio n th at a n ex u s is req u ired : In re Ro ma n P
., No

. A 1 4 3 4 6 8
, 2 0 1 5 W L 6 6 0 4 6 09
, at * 2

– 3 (Cal. Ct. A p p

. Oct. 3 0
, 2 0 1 5 ) (u n

p u b l ish ed an d

n o n citab le u n d er Cal. R. Ct. 8 .1 1 1 5 (a)); an d In re Erica R.
, 1 9 2 C al. Rp tr. 3 d 9 1 9
, 9 22

– 2 3 (Cal. Ct. A pp

. 2 0 1 5 ). B u t t

w o o t h er d iv isio n s of th e sam e Calif o rn ia co u rt o f ap p eal h av e ex p ressly rej ected th e reaso n in g o f b o t h of th o se cases:

N o t h i n g in

. . . an y oth er case o f w h ich w e are a w a r e , req u i res a co n n ectio n b etw een a pro b atio n er’ s past

co n du ct an d th e l o c a t i o n s th at m ay b e search ed to

u p h o ld a search co n d itio n

. . . . Giv en th e u b i q u i t y of electro n ic d ev ices, p articu larly cell p h o n es, w e can n o t say th at an electro n ics search co n d itio n is u n reaso n ab le sim p ly b ec a u s e th e reco rd d o es n o t sh o w th at th e p ro b atio n er n ecessarily h as a c cess t o s u ch dev ices or h as u sed th em

to en g ag e in illeg al activ ity

.

In r e Pa trick F.
, No

. A 1 4 3 5 8 6
, 2 0 1 5 W L 7 0 09 0 5 6
, at * 3 (Cal. Ct. A p p

. No v

. 1 2
, 2 0 1 5 ) (citin g In re Rica rd o P
., 19 3 Cal. Rp tr. 3 d 8 8 3
, 8 9 3 (Cal. Ct. A p p . 2 0 1 5 ) an d ex p ressly

d isag reein g w ith In re Erica R. ).U N I T E D S T A T E S V

. B A R E 17

defendant] was convicted as long as t h e y satisfy any of the conditions set forth [ in § 3583(d)(1)] .”). T h e l a w only requires some nex us between the computer search condition and furthering “the g o a l o f deterrence, protection of the public, or rehabilitation of the o ffender.” Id .; see also United States v. Manuel

, 6 0 1 F

. App’x 585, 585–86 (9th Cir. 2015) ( upholding a computer search c ondition—imposed due t o Department o f Corrections records indicating g ang affiliati o ns or involvement—for a defendant convicted o f being a felon in possession of a mmunition); United S tates v

. Hayes
, 283 F

. App’x 589, 594 ( 9 t h C ir. 2008) (upholding a computer monitoring condition—imposed due to evidence o f the use of t e x t messag ing to threaten and harass f ormer wives—for a defendant convicted of making a false statement to acquire a firearm).

Here, the circumstances of B are’s offense y ield a demonstrable nex us between both his offense and the need for a dequate d eterrence. His conviction for b eing a f e l o n in possession of firearms arose directly o u t of his h ome-based commercial pawn business. W e are mindfu l that one of the
weapons B are t o o k i n pawn was an AK47, w ith a 47-round clip, a w eapon ex isting for no o ther purpose than to efficiently kill others. Be ca u s e f uture records for such a business mig ht easily be kept on computers, the district court did not abuse its discretion when imposing th e e l ectronic search condition. No case in our Circuit dictates the opposite conclusion. 8 T hose cases st r i k ing down computer-related

8 Ou r h o l d i n g d o es n o t co n f lict w ith Sa les

. A lth o u g h th e d issen t b eliev es t h at th e S a les d ef en d an t, w h o u sed a co m p u ter, scan n er, an d
p rin ter to co u n terf

eit cu rren cy , “ co u ld h av e u sed th e in tern et to co m m it h is

co u n terf eitin g crim e an d m i g h t d o so th e n ex t tim e,” see Dissen t at 2 0 th is

co u rt in S a les d i d n o t sh are th at b elief

. In f act, w e ex

p r e ss l y f o u n d th atU N I T E D S T A T E S V

. B A R E 18

conditions of supervised release invo l v e d ifferent and much broader conditions than the one at issue here. See, e.g

. , Barsumyan
, 517 F .3d at 1 160–62 (striking condit i on prohibiting the defendant from “accessing or possessing any computer or computer-related devices in any manner, o r for
any purpose”); Sales

, 476 F .3d at 736–37 (striking condition requiring the d efendant to “ seek and obtain approval from his probation officer before us i n g any particular computer o r computer-related device”).

Even B are himself acknowledg es that some computerrelated search condition would be reasonable:

I haven’t meant to foreclose entirely a sear ch here. The challeng e I presented

. . . is not that th i s Court should reverse and direct the d i strict court not to impose this condition at all. My core contention has alway s been that the judg e didn’t make t h e rig h t finding s a nd this Court should instruct him to do so.

W e conclude that the district court’s nex us finding s were sufficient to properly support the computer search condition imposed. There was no abuse of discretion in doing so.

AF F IRMED.

“ t h e reco rd su g g ests n o su ch lin k b etw een th e i n tern et an d co u n terf eitin g ,”

w h en ru lin g th at th e co n ditio n restrictin g S a l e s ’s co m p u ter an d in tern et

u se w as o v erly b ro ad

. 4 7 6 F.3 d at 7 3 6 n .2

. In co n trast, th e d istrict co u rt h ere f ou n d th e n ex u s req u ired f o r t h e co m p u ter search co n d i t io n b ecau s e

co m pu ters are “ ty

p ically ” w

h ere b u sin ess reco rd s are “ o f ten k ep t.”U N I T E D S T A T E S V

. B A R E 19

KOZ I NSKI , Circuit J udg e, dissenting in part:

Persons o n supervised rele a s e may have d iminished

ex p ectations of p rivacy

, b u t they have privacy rig hts nonetheless. Moreover, Cong ress has instructed us to adopt

c o nditions of supervised release that impose “no g reater deprivation of liberty than is reasonably necessary ” to achieve the g oals o f supervised release. 18 U.S.C. § 3583(d)(2). The majority today disreg ards this c omman d by allowing probation officers to search defendant’s computer at a ny time, for any reason or no reason, e ven thoug h defend ant did not

use a computer to c a rry out his crime, and (so far as we know) did not even own a computer when he committed the offense.

The majority ’s r ationale, that defendant’s crime could be committed w ith the help of a computer, is no limitation at all. Pretty much any federal crime can be committed by using a

c o mputer in some way

—to maintain records, to case the
pr emises using Goog le Street View or to track down accomplices, methods and supplies necessary for committing the crime. I f a hy

pothesis about h o w t he crime might have been c ommitted is a sufficient j u s t ification for imposing a supervised r e l e ase condition, then any condition c an be justified by supposing t h a t t he crime could be committed in

a way that’s different from the method emp l o y e d by the defendant. I cannot subscribe to such a broad a nd a morphous standard.

The Supreme Court recently reminded us of the massive intrusion into personal privacy that o ccurs when police rifle throug h the c o n t e n ts of a smartphone, which the Court characteriz ed a s a “minic o m p uter[ ] .” Riley v

. California

, 134 S. Ct. 247 3
, 2489 (2014). The Court criticiz edU N I T E D S T A T E S V

. B A R E 20

electronics searches for a llowing police to reconstruct “[ t] he

sum of an individual’s private life.” Id

. The search of all o f defendant’s comp u ters—desktops, laptops, smartphones— would certainly do no less. Such a n intrusion must be based

on a substantial justification, which is why none of o u r published o p inions approve an electronics search con dition where the crime itself d oesn’t involve the use of a computer. And af t er R iley

, other c o urts have invalidated ex pansive electronics search conditions t h a t l a ck a nex us to the defendant’s crime. S

e e , e.g. , In re Roman P. , No. A143468, 2015 WL 6604609, at *2–3 (Cal. Ct. App. O ct. 30, 2015); I n

re Erica R

. , 192 Cal. Rptr. 3d 9 1 9
, 9 22–23 (Cal. Ct. App. 2015).

The majority cites two c a ses for the c ontrary 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 S t a t e s v. Betts
, 511 F .3d 872, 876 (9th Cir. 2007); Maj. O p

. a t 1 4–15. B ut computers were not mentioned in Betts
, so that case provides

no support for today ’s ruling

. And Sales cuts entirely ag ainst the majority

. There w e vacated a supervised r e l ease condition requiring the defend a n t to obtain approval from a probation o fficer before accessing the w eb, because his crime “in no w ay involved or relied upon the inter n et

. ” United States v. Sales

, 476 F .3d 7 32, 736 (9th Cir. 2007). Using the rationale of today ’s opinion, Sales would have come out the other way because the defendant there could h ave used the internet to c o m m i t his counterfeiting c rime a nd mig ht do so

nex t time. Betts and Sales are in conflict.

The majority also cites two unpublished cases to support its decision. Maj. Op. at 17. Bu t o u r rules clearly state that unpublished dispositions aren’t aut h o r i t y

. Ninth Cir. Rule 36-U N I T E D S T A T E S V

. B A R E 21

3(a). And for g ood reason: They g enerally aren’t worded carefully enoug h to g overn future cases, n or are they ex p osed
to the ty pe of en banc scrutiny to which published o p inions

are subjected. See H

art v

. M a s s anari
, 266 F .3d 1155, 1178–79 ( 9th Cir. 2001). I n any event, the memdispos don’t help the majority

. I n United States v

. Manuel

, the defendant challeng ed h is computer search condit i on because it was imposed based on the incorrect assumption that he was a g ang

m e m ber—not because he didn’t use electronics in c o m m i t t i n g his c rime. 601 F

. App’x 5 85 (9th Cir. 2015). And the Hayes defendant u sed a cell phone to send threatening messag es, so the electronic search condition was reasonably related to his previous offenses. United States v. Hayes
, 283 F

. App’x 589 (9th Cir. 2008). The majority is g rasping at straws.

B ar e obtained firearms throug h a small-scale pawn operation h e ran o ut of his h ome on the W hippoorwill Navajo reservation. So informal w as his enterprise that F B I ag ents didn’t find a sing le electronic device tha t w as used in connection with the business at his hou s e

. T h ey discovered only a paper ledg er with names and f ig ures. As there’s no evidence linking B are’s business to electronics, searching his computers is a

n unjustifiab l e i n trusion into his privacy a nd that o f h is family

. B ecaus e t h e majority ’s new rule breaks with our precedents and d o e s n’t advance the g oals o f supervised release, I respectfully dissent from the portion o f the opinion approving this supervised release condition.