United States of America v. YU SUNG PARK, AKA Sung Park

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
YU SUNG PARK, AKA Sung Park,
Defendant-Appellant.
No. 18-50230
D.C. No. 8:08-cr-00197-AG-2
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted November 19, 2021
Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and BOUGH,** District
Judge.
Yu Sung Park was convicted of four offenses related to a conspiracy to rob a
fictitious stash house. Park filed a 28 U.S.C. § 2255 motion, and one of the
convictions was invalidated under Johnson v. United States, 576 U.S. 591 (2015),
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
FILED
DEC 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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and Sessions v. Dimaya, 138 S. Ct. 1204 (2018). The district court held
resentencing hearings, reduced Park’s custodial sentence, and imposed the
following suspicionless supervised release search condition:
Defendant shall submit his person and property including any
residence, premises, vehicle, container, papers, effects, and computers
or other electronic communication or digital storage devices or media
under his control, to search and seizure at any time of the day or night
by any law enforcement officer or probation officer, with or without a
warrant, probable cause, or reasonable suspicion. The court invites the
defendant to present to the Court any issues with this condition,
including if the defendant feels he is being harassed.
Park appeals the “search condition as it applies to computers and other
electronic devices” on two grounds. First, he argues that allowing suspicionless
searches of his electronic data violates the Fourth Amendment. Second, he argues
that the district court abused its discretion by imposing this electronic search
condition without establishing a nexus between Park’s use of electronic devices
and the statutory goals of supervised release. Having jurisdiction under 28 U.S.C.
§ 1291, we hold that although the district court correctly found that the condition is
reasonable under the Fourth Amendment, it failed to establish the required
statutory nexus.
1. “Whether a supervised release condition . . . violates the Constitution
is reviewed de novo.” See United States v. Watson, 582 F.3d 974, 981 (9th Cir.
2009). Although the condition at issue authorizes significant intrusions into Park’s
digital privacy—an area subject to heightened protection under Riley v. California,

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573 U.S. 373 (2014)—we agree with the district court that the condition is not
facially unconstitutional. We have permitted suspicionless searches of federal
supervisees in the past, see United States v. Betts, 511 F.3d 872, 876 (9th Cir.
2007), as well as searches of federal supervisees’ electronic data, see United States
v. Bare, 806 F.3d 1011, 1018 n.4 (9th Cir. 2015). It remains possible that on
another day we could find a particular search executed under this search condition
unconstitutional due to the “totality of the circumstances,” but the condition is at
least facially constitutional. See United States v. Knights, 534 U.S. 112, 118–19
(2001). And the district court expressly invited Park to present “any issues with
this condition” that might arise in the future.
2. However, the district court abused its discretion by imposing the
suspicionless electronic search condition without establishing a nexus between
Park’s use of electronic devices and the statutory goals of supervised release. “The
principal statutory provision that constrains the district court's discretion to impose
conditions of supervised release is 18 U.S.C. § 3583(d).” Bare, 806 F.3d at 1017
(quoting United States v. Stoterau, 524 F.3d 988, 1002 (9th Cir. 2008)). Under
§ 3583(d), when the district court “impose[s] a condition of supervised release
permitting the search of a defendant’s personal computers,” the court must “make[]
a factual finding establishing some nexus between computer use and one of the
goals articulated in 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C), or (a)(2)(D).” Id. at

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1017. Here, the sentencing judge failed to make a factual finding that established a
nexus between computer use and a supervised release sentencing goal. Although
the court vaguely referenced a concern for public safety, see 18 U.S.C.
§ 3553(a)(2)(c), it failed to demonstrate any connection between Park’s use of
electronic devices and protection of the public. Without the required nexus, the
electronic search condition cannot stand.
Therefore, we VACATE the search condition insofar as it allows
suspicionless searches of “computers or other electronic communication or digital
storage devices or media under [Park’s] control,” and REMAND to the district
court for further sentencing proceedings.

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