United States of America v. Arturo Sigala-Salazar

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ARTURO SIGALA-SALAZAR,
Defendant-Appellant.
No. 21-10342
D.C. No.
2:19-cr-00296-JAD-EJY-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted November 18, 2022
San Francisco, California
Before: LINN,** RAWLINSON, and HURWITZ, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
FILED
DEC 2 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Arturo Sigala-Salazar pleaded guilty to possession of child pornography and
was sentenced to a prison term to be followed by seven years of supervised release.
On appeal, he challenges several conditions of supervised release. Because trial
counsel failed to object to those conditions, we review for plain error. See United
States v. Wolf Child, 699 F.3d 1082, 1089 (9th Cir. 2012). We affirm in part, vacate
in part, and remand.
1. Sigala’s plea agreement waived his right to appeal anything but an above-
Guidelines sentence, which he did not receive. But, “[w]hen a defendant with an
otherwise valid appeal waiver challenges the legality of her sentence, the claim as to
waiver rises and falls with the claim on the merits.” United States v. Nishida,
No. 21-10070, 2022 WL 16986253, at *4 (9th Cir. Nov. 17, 2022) (cleaned up). We
therefore turn to Sigala’s various claims that the terms of supervised release were
illegal.
2. It was not plain error for the district court to impose a term of supervised
release that would continue after Sigala is removed upon completion of his custodial
sentence. The court provided “a specific and particularized explanation that
supervised release would provide an added measure of deterrence.” United States
v. Valdavinos-Torres, 704 F.3d 679, 693 (9th Cir. 2012); see also U.S.S.G. § 5D1.1
cmt. 5. Moreover, the government conceded at argument that the conditions of

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supervised release will not be enforced against Sigala unless he returns to the United
States after removal.
3. We vacate Special Condition 4 and remand for the district court to
reconsider its language in light of Nishida, 2022 WL 16986253, which dealt with a
similar supervised release condition.
4. We also vacate Special Condition 8, which prohibits Sigala from viewing
or possessing pornographic materials that could “compromise [his] sex offense-
specific treatment,” as unconstitutionally vague because people “of common
intelligence must necessarily guess at its meaning” and may “differ as to its
application.” United States v. Evans, 883 F.3d 1154, 1160 (9th Cir. 2018) (cleaned
up). We note that any vagueness problem with Special Condition 8 would not be
present if Sigala were simply forbidden from viewing or possessing any
pornographic materials. See United States v. Ochoa, 932 F.3d 866, 870 (9th Cir.
2019).
5. The court did not plainly err by imposing Special Conditions 11 and 12.
These conditions adopt the 18 U.S.C. § 1030(e)(1) definition of “computer.”
Because that definition “potentially could be understood to encompass common
household objects,” we have held it vague when used in a supervised release
condition that restricts a releasee’s ability to “possess or use a computer.” United
States v. Wells, 29 F.4th 580, 588 (9th Cir. 2022). Special Conditions 11 and 12,

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however, do not restrict Sigala’s possession of computers, but merely subject them
to search and monitoring by a probation officer. The vagueness issue posed in Wells
is therefore not present here. Moreover, Special Conditions 11 and 12 pertain only
to devices on which a probation officer can “install computer monitoring software.”
Sigala will be informed about which devices have software installed, and therefore
know which devices he “must warn” others “may be subject to searches.”
6. The district court did not plainly err by imposing Special Condition 7,
which permits searches of electronic communications, data storage devices, media,
and computers. The condition is not vague because it requires “reasonable
suspicion” of violation before any search, pertains only to devices that might
“contain evidence” of violation, and can only result in revocation if Sigala “fails” to
submit to a search. Sigala’s duty to warn others about the possibility of search is not
vague because it applies only to his property.1
7. The district court did not plainly err by imposing Standard Condition 12.
We have recently held that “there is nothing unconstitutionally vague about” a nearly
identical risk-notification provision. United States v. Gibson, 998 F.3d 415, 423 (9th
Cir. 2021).
1 Sigala also claims that Special Conditions 7, 11, and 12 unconstitutionally
infringe on his Fourth Amendment rights. But the government interest in
supervising Sigala upon release is plainly sufficient to impose search and monitoring
conditions on Sigala’s computers, electronic communications, and data storage
devices. See United States v. Kincade, 379 F.3d 813, 835 (9th Cir. 2004) (en banc).

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AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

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