United States v. Ibrahim Bare

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10475

Plaintiff-Appellee,

D.C. No.

v. 3:12-cr-08142-NVW-1

IBRAHIM FAHAB BARE,

Defendant-Appellant. OPINION

Appeal from the United States District Court

for the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and Submitted

August 13, 2015—San Francisco, California

Filed November 24, 2015

Before: Alex Kozinski and Richard C. Tallman, Circuit

Judges, and Lee H. Rosenthal,* District Judge.

Opinion by Judge Tallman;

Dissent by Judge Kozinski

*

The Honorable Lee H. Rosenthal, United States District Judge for the

Southern District of Texas, sitting by designation.

2 UNITED STATES V. BARE

SUMMARY**

Criminal Law

The panel affirmed a sentence imposed upon a defendant,

a non-Indian who lives on tribal land, for two counts of being

a felon in possession of a firearm in violation of 18 U.S.C.

§§ 922(g)(1) and 924(a)(2).

The panel held that the district court did not err

in applying a 4-level enhancement under U.S.S.G.

§ 2K2.1(b)(6)(B) for use of a firearm in connection with

another felony offense. The panel held that due to the

Assimilative Crimes Act, it does 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 district court

therefore properly applied the enhancement based on the

defendant discharging a firearm over the head of an Indian

while on the Navajo Reservation, which if committed

elsewhere in Arizona, would qualify as felony disorderly

conduct under Arizona Revised Statutes § 13-2904(A)(6).

The panel held that the district court did not abuse its

discretion by imposing a condition of supervised release

permitting searches of the defendant’s computers and other

electronic devices by a probation officer. The panel held that

so long as a district court makes 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

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

UNITED STATES V. BARE 3

(a)(2)(D), it 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. The panel held

that the district court’s finding that a nexus existed between

the defendant’s potential computer use while he remains

under supervised release and the need to deter his future

criminal conduct—i.e., repeating the possession and pawning

of prohibited firearms—was not clearly erroneous and was

well-supported by the facts.

Judge Kozinski dissented from the portion of the opinion

approving the supervised release condition. He wrote that

the majority disregards the command in 18 U.S.C.

§ 3583(d)(2)—that supervised release conditions impose “no

greater deprivation of liberty than is reasonably necessary”

to achieve the goals of supervised release—by allowing

probation officers to search the defendant’s computer at any

time, for any reason, even though the defendant did not use

a computer to carry out his crime, and (so far as the panel

knows) did not even own a computer when he committed the

offense.

COUNSEL

Keith J. Hilzendeger (argued), Assistant Federal Public

Defender; Jon M. Sands, Federal Public Defender, Phoenix,

Arizona, for Defendant-Appellant.

Lacy Cooper (argued), Assistant United States Attorney; John

S. Leonardo, United States Attorney; Mark S. Kokanovich,

Assistant United States Attorney, Deputy Appellate Chief,

Phoenix, Arizona, for Plaintiff-Appellee.

4 UNITED STATES V. BARE

OPINION

TALLMAN, Circuit Judge:

On December 13, 2012, a jury convicted Ibrahim Fahab

Bare—a non-Indian who lives on tribal land with his

common-law wife—of two counts of being a felon in

possession of a firearm. Bare challenges his 4-level

sentencing enhancement for his use of a firearm in connection

with another felony offense, as well as his condition of

supervised release permitting searches of his computers and

other electronic devices by a United States Probation Officer.

We 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 order to

apply an enhancement for discharging a firearm under United

States Sentencing Guidelines § 2K2.1(b)(6)(B). We further

hold that so long as a district court makes a properly

supported factual finding from the record before it,

establishing some nexus between computer use and the need

for the sentence imposed to accomplish deterrence, protection

of the public, or rehabilitation of the defendant, it is not an

abuse of discretion for the district court to impose a condition

of supervised release permitting the search of a defendant’s

personal computers. Because the district court made such a

permissible factual finding establishing the nexus here, and

because Bare is subject to punishment for committing the

felony offense of disorderly conduct involving weapons in

connection with his felon in possession conviction, we affirm.

I

On April 9, 2012, Navajo Tribal Police responded to a

call reporting shots fired at Bare’s residence located on the

UNITED STATES V. BARE 5

Navajo Reservation in Whippoorwill, Arizona.1 Witnesses

reported to officers that Bare and Keithaniel Begay began to

argue in the threshold of Bare’s residence over Bare’s refusal

to provide cigarettes to an intoxicated Begay. As the

argument escalated, Bare pulled out a pistol and pointed it at

Begay. Unarmed, Begay turned and started to walk away

from the residence when Bare fired a shot over Begay’s head.

According to one of Begay’s sisters, Bare also threatened to

kill Begay. Another sister—who is also Bare’s neighbor—

reported that Bare threatened her by warning, “You know I

can kill you.”

Bare’s common-law wife consented to a search of their

shared residence. Officers recovered a nine-millimeter

Jimenez Arms pistol inside a bag of dog food located in the

dining room, as well as one spent shell casing located on the

ground outside the home. After ignoring multiple commands

to submit to arrest, the officers pepper sprayed Bare 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 court alleging Bare committed a felony firearms

offense. Because Bare failed to appear in court, federal

agents went to his residence with an arrest warrant. When the

agents approached, Bare ran inside the residence, locked the

front door, and began destroying items. After Bare unlocked

1

To the extent we refer to facts contained in the Presentence Report to

discuss relevant portions of Bare’s offense conduct and criminal history,

we partially lift the order sealing the Presentence Report. The Presentence

Report was expressly adopted and considered by the district court in

fashioning the appropriate sentence and conditions at issue here.

6 UNITED STATES V. BARE

the door and emerged from the residence, agents took him

into custody and searched the home. The search revealed:

An Elk River Tool and Die Inc. model ERTD

AK47 7.62 caliber [assault] rifle with an

attached magazine loaded with 47 rounds of

7.62x39 ammunition[;] a Savage model 110E

.30-06 caliber rifle with six rounds attached to

the butt of the rifle, . . . a BB handgun, two

ammunition magazines, 81 rounds of various

brand 9-millimeter ammunition, 50 rounds of

Remington .45 caliber ammunition, and 50

rounds of Remington .32 caliber ammunition.

The agents also found pills, drugs, a digital scale, and a

financial ledger “titled ‘My Money’ with names and numbers

next to the names.” Bare admitted he knew he could not

possess firearms due to prior felony convictions.2

Bare denied ownership of the weapons. He claimed two

of the firearms belonged to family members, and the rest

“were in his possession as they were ‘pawned’ as part of his

self-employed, in-home pawn business.” Bare’s common-

law wife also told investigators during an interview that she

“believed the financial ledger discovered in the residence was

a list of Bare’s pawn customers.” She acknowledged her

prior awareness of the firearms that had been found in their

home and told agents she thought Bare had “taken them in

pawn.”

2

Bare was convicted in 2000 for possession of burglary tools, and in

2001 and 2002 for resisting arrest, all felonies.

UNITED STATES V. BARE 7

On December 13, 2012, a jury found Bare guilty of two

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 sentenced Bare on April 8,

2013. It applied a base offense level of 22 after treating

Bare’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, possession, or transportation of firearms or

ammunition” if “the defendant committed any part of the

instant offense subsequent to sustaining one felony conviction

of . . . a crime of violence”). It also applied a 2-level

enhancement because the offense involved at least three

firearms. See id. § 2K2.1(b)(1)(A). At the time of Bare’s

initial sentencing, the United States Probation Office did not

recommend, and the district court did not therefore adopt, a

4-level enhancement for the use of a firearm in connection

with another felony offense. See id. § 2K2.1(b)(6)(B).

Bare’s total offense level (24), coupled with his criminal

history category (II), resulted in an advisory Guidelines range

of 57–71 months.

At sentencing, the district court explained Bare’s offense

was “perhaps one of the worst felon in possession cases I

have seen in my nine years as a judge of this court . . .

because of the length, the awareness of the wrongfulness, the

commercial possession of taking of firearms, [and] the

discharge of the firearm.” It sentenced Bare to 57 months

imprisonment. In addition, the district court imposed a

computer search condition of supervised release. It overruled

Bare’s objection to this condition, expressly finding a nexus

between Bare’s operation of a pawn business involving

8 UNITED STATES V. BARE

firearms and the ability to store records related to that

business on computers or other electronic devices: “I do see

a nexus here . . . because there was a commercial context to

what he was doing that goes directly to the offense in

possession.”

Bare appealed his conviction and sentence. United States

v. Bare, 583 F. App’x 721, 722 (9th Cir. 2014). We affirmed

his conviction, but vacated his sentence because the district

court erred when calculating his base offense level. Id. at

723–24. We held Bare had not previously been convicted of

a crime of violence, which “might well [have] affect[ed] the

district court’s sentencing decision.” Id. at 724; see also

United States v. Flores-Cordero, 723 F.3d 1085, 1088 (9th

Cir. 2013) (“[A]n Arizona conviction for resisting arrest

cannot be considered categorically a crime of violence under

the federal Sentencing Guidelines.”).

Bare’s resentencing took place on October 21, 2014.

Upon remand, Bare’s corrected base offense level was 20.

See U.S.S.G. § 2K2.1(a)(4). The district court once again

applied a 2-level enhancement because the offense involved

at least three firearms. See id. § 2K2.1(b)(1)(A). In addition,

it applied the 4-level enhancement for the use of a firearm in

connection with another felony offense—disorderly conduct

in violation of Arizona Revised Statutes § 13-2904(A)(6).

See id. § 2K2.1(b)(6)(B). Probation explained it was an error

to fail to include this enhancement in Bare’s original

Presentence Report. Bare’s resulting total offense level was

26, with an advisory Guidelines range of 70–87 months.

The district court incorporated its view that the

“comments in the first sentencing [we]re all still correct,” and

emphasized:

UNITED STATES V. BARE 9

[A]s I remarked the last time, I think this is

probably the most serious felon in possession

case that I have seen in my years on the Court,

most serious in terms of not just possession

but discharging the firearm in an environment

of uncontrolled anger with a history of

uncontrollable anger; a history of violence,

fortunately, violence that didn’t result in any

serious injury; but the history of prior

incarceration with a string of discipline

violations during the prior incarceration.

So this is a case that’s really the top end of the

chart in terms of the seriousness of the

offense, the need for the sentence to respect

the seriousness of the offense, to promote

respect for the law, to provide deterrence to

[Bare], is critically important for the safety of

the community . . . .

Recognizing Bare’s recent success and lack of disciplinary

infractions while in custody on the latest charges, the district

court sentenced him to 54 months imprisonment.

Finally, the district court reimposed the computer search

condition of supervised release: “You shall submit your

person, property, house, residence, vehicles, papers,

computers as defined in 18 U.S.C. § 1030(e)(1), other

electronic communications or data storage devices or media,

or office, to a search conducted by a probation officer. . . .

You shall warn any other occupants that the premises may be

subject to searches pursuant to this condition.” Bare objected

to the portion of this condition as it related to computers or

“data compilations,” but did not object to the other aspects of

10 UNITED STATES V. BARE

the search condition.3 The district court overruled Bare’s

objection, finding that “in light of the fact that Mr. Bare was

taking firearms in connection with a business activity to

pawn, it’s appropriate to search computers where typically

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.3d 1127, 1130 (9th Cir. 2007) (quotation

omitted). “We review conditions of supervised release for

abuse of discretion.” United States v. Betts, 511 F.3d 872,

874 (9th Cir. 2007). “In applying this standard of review, ‘we

give considerable deference to a district court’s determination

of the appropriate supervised release conditions,’ recognizing

that ‘a district court has at its disposal all of the evidence, its

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

States v. Stoterau, 524 F.3d 988, 1002 (9th Cir. 2008)

(quoting United States v. Weber, 451 F.3d 552, 557 (9th Cir.

2006)).

IV

A 4-level enhancement is appropriate when the defendant

“[u]sed or possessed any firearm or ammunition in

connection with another felony offense[.]” U.S.S.G.

§ 2K2.1(b)(6)(B). Such a “felony offense” “means any

Federal, state, or local offense . . . punishable by

imprisonment for a term exceeding one year, regardless of

3

During oral argument, Bare confirmed that he challenges the condition

only with respect to computers or electronic devices.

UNITED STATES V. BARE 11

whether a criminal charge was brought, or a conviction

obtained.” Id. § 2K2.1 cmt. 14(C).

Bare’s actions, if committed elsewhere in Arizona, would

qualify as felony disorderly conduct under Arizona Revised

Statutes § 13-2904(A)(6) for “recklessly handl[ing],

display[ing] or discharg[ing] a deadly or dangerous

instrument.” See Ariz. Rev. Stat. § 13-2904(B) (classifying

disorderly conduct under subsection (A)(6) as “a class 6

felony”). Because Bare, a non-Indian, discharged a firearm

over the head of an Indian while on the Navajo Reservation,

he is subject to punishment in Indian Country—by the United

States—which incorporates in the federal offense the

elements of Arizona’s disorderly conduct statute under the

ACA. See 18 U.S.C. §§ 13, 1152; United States v. Marcyes,

557 F.2d 1361, 1364 (9th Cir. 1977) (“[T]he ACA is a

general law of the United States made applicable to Indian

reservations by 18 U.S.C. [§] 1152.”); see also United States

v. Kaufman, 862 F.2d 236, 237–38 (9th Cir. 1988) (per

curiam) (finding the ACA appropriate to punish a person who

purposefully pointed a firearm at another person in violation

of an Oregon statute while “within a federal enclave”).

The district court properly considered what is otherwise

a felony violation of Arizona Revised Statutes § 13-

2904(A)(6), which supported its application of the

enhancement. See United States v. Turnipseed, 159 F.3d 383,

384, 386 (9th Cir. 1988) (upholding application of

enhancement where defendant fired a handgun in the

direction of several youths in violation of a Washington

assault statute). We 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 near

Begay during their altercation.

12 UNITED STATES V. BARE

V

“The principal statutory provision that constrains the

district court’s discretion to impose conditions of supervised

release is 18 U.S.C. § 3583(d).” Stoterau, 524 F.3d at 1002.

“[T]he conditions imposed are permissible only if they are

reasonably related to the goal of deterrence, protection of the

public, or 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 offense for which [the defendant] was

convicted as long as they satisfy any of the conditions set

forth [in § 3583(d)(1)].” Id.; see also United States v.

Blinkinsop, 606 F.3d 1110, 1119 (9th Cir. 2010) (“‘A

condition of supervised release does not have to be related to

the offense of conviction,’ because the sentencing judge is

statutorily required ‘to look forward in time to crimes that

may be committed in the future’ by the convicted defendant.”

(quoting United States v. Wise, 391 F.3d 1027, 1031 (9th Cir.

2004)).

A

While we have on occasion vacated conditions of

supervised release limiting or restricting the ability to use

computers and access the Internet, we have not taken such a

heavy hand with respect to general search conditions of

personal computers. Compare United States v. Barsumyan,

517 F.3d 1154, 1161 (9th Cir. 2008) (“[A] mere nexus

between the crime and a computer does not justify

proscribing the use of anything containing a circuit board or

microchips.”), with United States v. Morris, 485 F. App’x

213, 216 (9th Cir. 2012) (“Morris has cited no authority that

clearly supports her argument that a suspicionless computer

UNITED STATES V. BARE 13

search-and-seizure condition may not be imposed on a

defendant who only tangentially made use of a computer in

the course of her crime, nor authority that holds that the

district court’s computer search conditions are impermissibly

broad.”).

We hold that so long as a district court makes 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)—which was amply supported by the

record here—it 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. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988)

(upholding probation condition with “a reasonable nexus with

the twin goals of probation, rehabilitation and protection of

the public”); see also United States v. Hinkson, 585 F.3d

1247, 1264 (9th Cir. 2009) (en banc) (explaining that when

reviewing a district court’s actions for abuse of discretion,

“we look to whether the district court’s findings of fact, and

its application of those findings of fact . . ., were illogical,

implausible, or without support in inferences that may be

drawn from facts in the record”). In articulating this rule, we

are guided by our prior decisions in United States v. Sales,

476 F.3d 732 (9th Cir. 2007), and United States v. Betts,

511 F.3d 872 (9th Cir. 2007). We held in Sales that a

condition permitting the search and seizure of any computer-

related device “used by the defendant” was overbroad

because it applied to computers used for work or personal

purposes, whether owned by the defendant or others.

476 F.3d at 734, 737. For that reason, we limit our holding to

personal computers or electronic devices over which a

defendant has control and where he has both the obligation

14 UNITED STATES V. BARE

and the ability to inform other users that the computers or

devices may be subject to search.

In Betts, we affirmed a condition for warrantless searches

“at any time” of the defendant’s “person and property,” where

“property” presumably included computers. See 511 F.3d at

876. Because “[p]eople on supervised release have not

completed their sentences, they are serving them,” we drew

a parallel between state parolees and federal felons who are

out on supervised release.4 Id. Therefore, in the wake of

Samson v. California, 547 U.S. 843 (2006)—which held that

“[i]mposing a reasonable suspicion requirement . . . would

give parolees greater opportunity to anticipate searches and

conceal criminality”—we concluded that “[w]e cannot

characterize the judge’s exercise of discretion as an abuse,

even though it is very intrusive.” Betts, 511 F.3d at 876.5

4

We reject Bare’s assertion of the Fourth Amendment protections

outlined in Riley v. California, 134 S. Ct. 2473, 2488–89 (2014). He does

not warrant the same level of protections as arrestees because—as a

convicted federal prisoner still serving a portion of his sentence—his

Fourth Amendment rights are diminished. See Hudson v. Palmer,

468 U.S. 517, 524 (1984) (“[W]hile persons imprisoned for crime enjoy

many protections of the Constitution, it is also clear that imprisonment

carries with it the circumscription or loss of many significant rights.

These constraints on inmates, and in some cases the complete withdrawal

of certain rights, are justified by the considerations underlying our penal

system.” (quotation and citations omitted)); Samson v. California,

547 U.S. 843, 853 (2006) (“[T]his Court has repeatedly acknowledged that

a State’s interests in reducing recidivism and thereby promoting

reintegration and positive citizenship among probationers and parolees

warrant privacy intrusions that would not otherwise be tolerated under the

Fourth Amendment.”).

5

“California law provide[d] that every prisoner eligible for release on

state parole ‘shall agree in writing to be subject to search or seizure . . . at

any time of the day or night, with or without a search warrant and with or

UNITED STATES V. BARE 15

Once a district court meets the nexus requirement outlined

above, then, under Betts, a general search provision of a

defendant’s computers or other electronic devices does not

amount to an abuse of discretion.

B

The district court made a factual finding that a nexus

existed here between Bare’s potential computer use while he

remains under supervised release and the need to deter his

future criminal conduct, i.e., repeating the possession and

pawning of prohibited firearms. We disturb the nexus finding

only if it is clearly erroneous. See Hinkson, 585 F.3d at 1259.

The district court’s nexus finding was not clearly erroneous

and, in fact, was well-supported by the facts of the case. As

articulated by the Government during Bare’s original

sentencing, evidence existed that Bare kept paper records of

his illicit firearms pawn business. Permitting a search of only

paper records—but not computers—might enable Bare to

evade discovery of recidivist activity by switching his records

into an electronic format. Allowing such a loophole to exist

would, as denounced in Samson, give Bare a “greater

opportunity to anticipate searches and conceal criminality.”

547 U.S. at 854.6 To illustrate, we will never know what

without cause.” Samson, 547 U.S. at 846 (quoting Cal. Penal Code

§ 3067(a) (2000)); see also Cal. Penal Code § 3067(b)(3) (2015)

(requiring notice to any inmate eligible for release or parole “that he or she

is subject to search or seizure . . . at any time of the day or night, with or

without a search warrant or with or without cause.”).

6

The dissent misconstrues our rationale. See Dissent at 19. The district

court did not look to whether the “defendant’s crime could be committed

with the help of a computer” or “hypothesi[ze] about how the crime might

have been committed.” Id. at 19. Instead, the district court properly

16 UNITED STATES V. BARE

incriminating evidence Bare destroyed while he kept arresting

federal officers at bay.

Although the dissent requires a direct nexus between the

offense conduct and the computer search condition, the law

does not.7 T.M., 330 F.3d at 1240 (“The supervised release

conditions need not relate to the offense for which [the

looked “forward in time to crimes that may be committed in the future,”

as 18 U.S.C. § 3553(a)(2)(C) requires. Wise, 391 F.3d at 1031. Under

the dissent’s rationale, the computer search condition was only appropriate

if Bare used a computer in the offense. But the district court was not

restricted to imposing conditions that would prevent “further crimes of the

defendant” that were identical to his offense. The standard for imposing

the computer search condition is clear: the condition must be “reasonably

related” to preventing and deterring further criminal conduct. 18 U.S.C.

§ 3583(d)(1). The district court met that standard here.

7

The dissent cites two cases from a California court of appeal to support

the position that a nexus is required: In re Roman P., No. A143468, 2015

WL 6604609, at *2–3 (Cal. Ct. App. Oct. 30, 2015) (unpublished and

noncitable under Cal. R. Ct. 8.1115(a)); and In re Erica R., 192 Cal. Rptr.

3d 919, 922–23 (Cal. Ct. App. 2015). But two other divisions of the same

California court of appeal have expressly rejected the reasoning of both of

those cases:

Nothing in . . . any other case of which we are aware,

requires a connection between a probationer’s past

conduct and the locations that may be searched to

uphold a search condition . . . . Given the ubiquity of

electronic devices, particularly cell phones, we cannot

say that an electronics search condition is unreasonable

simply because the record does not show that the

probationer necessarily has access to such devices or

has used them to engage in illegal activity.

In re Patrick F., No. A143586, 2015 WL 7009056, at *3 (Cal. Ct. App.

Nov. 12, 2015) (citing In re Ricardo P., 193 Cal. Rptr. 3d 883, 893 (Cal.

Ct. App. 2015) and expressly disagreeing with In re Erica R.).

UNITED STATES V. BARE 17

defendant] was convicted as long as they satisfy any of the

conditions set forth [in § 3583(d)(1)].”). The law only

requires some nexus between the computer search condition

and furthering “the goal of deterrence, protection of the

public, or rehabilitation of the offender.” Id.; see also United

States v. Manuel, 601 F. App’x 585, 585–86 (9th Cir. 2015)

(upholding a computer search condition—imposed due to

Department of Corrections records indicating gang

affiliations or involvement—for a defendant convicted of

being a felon in possession of ammunition); United States v.

Hayes, 283 F. App’x 589, 594 (9th Cir. 2008) (upholding a

computer monitoring condition—imposed due to evidence of

the use of text messaging to threaten and harass former

wives—for a defendant convicted of making a false statement

to acquire a firearm).

Here, the circumstances of Bare’s offense yield a

demonstrable nexus between both his offense and the need

for adequate deterrence. His conviction for being a felon in

possession of firearms arose directly out of his home-based

commercial pawn business. We are mindful that one of the

weapons Bare took in pawn was an AK47, with a 47-round

clip, a weapon existing for no other purpose than to

efficiently kill others. Because future records for such a

business might easily be kept on computers, the district court

did not abuse its discretion when imposing the electronic

search condition. No case in our Circuit dictates the opposite

conclusion.8 Those cases striking down computer-related

8

Our holding does not conflict with Sales. Although the dissent

believes that the Sales defendant, who used a computer, scanner, and

printer to counterfeit currency, “could have used the internet to commit his

counterfeiting crime and might do so the next time,” see Dissent at 20 this

court in Sales did not share that belief. In fact, we expressly found that

18 UNITED STATES V. BARE

conditions of supervised release involve different and much

broader conditions than the one at issue here. See, e.g.,

Barsumyan, 517 F.3d at 1160–62 (striking condition

prohibiting the defendant from “accessing or possessing any

computer or computer-related devices in any manner, or for

any purpose”); Sales, 476 F.3d at 736–37 (striking condition

requiring the defendant to “seek and obtain approval from his

probation officer before using any particular computer or

computer-related device”).

Even Bare himself acknowledges that some computer-

related search condition would be reasonable:

I haven’t meant to foreclose entirely a search

here. The challenge I presented . . . is not that

this Court should reverse and direct the

district court not to impose this condition at

all. My core contention has always been that

the judge didn’t make the right findings and

this Court should instruct him to do so.

We conclude that the district court’s nexus findings were

sufficient to properly support the computer search condition

imposed. There was no abuse of discretion in doing so.

AFFIRMED.

“the record suggests no such link between the internet and counterfeiting,”

when ruling that the condition restricting Sales’s computer and internet

use was overly broad. 476 F.3d at 736 n.2. In contrast, the district court

here found the nexus required for the computer search condition because

computers are “typically” where business records are “often kept.”

UNITED STATES V. BARE 19

KOZINSKI, Circuit Judge, dissenting in part:

Persons on supervised release may have diminished

expectations of privacy, but they have privacy rights

nonetheless. Moreover, Congress has instructed us to adopt

conditions of supervised release that impose “no greater

deprivation of liberty than is reasonably necessary” to achieve

the goals of supervised release. 18 U.S.C. § 3583(d)(2). The

majority today disregards this command by allowing

probation officers to search defendant’s computer at any time,

for any reason or no reason, even though defendant did not

use a computer to carry out his crime, and (so far as we

know) did not even own a computer when he committed the

offense.

The majority’s rationale, that defendant’s crime could be

committed with the help of a computer, is no limitation at all.

Pretty much any federal crime can be committed by using a

computer in some way—to maintain records, to case the

premises using Google Street View or to track down

accomplices, methods and supplies necessary for committing

the crime. If a hypothesis about how the crime might have

been committed is a sufficient justification for imposing a

supervised release condition, then any condition can be

justified by supposing that the crime could be committed in

a way that’s different from the method employed by the

defendant. I cannot subscribe to such a broad and amorphous

standard.

The Supreme Court recently reminded us of the massive

intrusion into personal privacy that occurs when police rifle

through the contents of a smartphone, which the Court

characterized as a “minicomputer[].” Riley v. California,

134 S. Ct. 2473, 2489 (2014). The Court criticized

20 UNITED STATES V. BARE

electronics searches for allowing police to reconstruct “[t]he

sum of an individual’s private life.” Id. The search of all of

defendant’s computers—desktops, laptops, smartphones—

would certainly do no less. Such an intrusion must be based

on a substantial justification, which is why none of our

published opinions approve an electronics search condition

where the crime itself doesn’t involve the use of a computer.

And after Riley, other courts have invalidated expansive

electronics search conditions that lack a nexus to the

defendant’s crime. See, e.g., In re Roman P., No. A143468,

2015 WL 6604609, at *2–3 (Cal. Ct. App. Oct. 30, 2015); In

re Erica R., 192 Cal. Rptr. 3d 919, 922–23 (Cal. Ct. App.

2015).

The majority cites two cases for the contrary 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 States v. Betts,

511 F.3d 872, 876 (9th Cir. 2007); Maj. Op. at 14–15. But

computers were not mentioned in Betts, so that case provides

no support for today’s ruling. And Sales cuts entirely against

the majority. There we vacated a supervised release

condition requiring the defendant to obtain approval from a

probation officer before accessing the web, because his crime

“in no way involved or relied upon the internet.” United

States v. Sales, 476 F.3d 732, 736 (9th Cir. 2007). Using the

rationale of today’s opinion, Sales would have come out the

other way because the defendant there could have used the

internet to commit his counterfeiting crime and might do so

next time. Betts and Sales are in conflict.

The majority also cites two unpublished cases to support

its decision. Maj. Op. at 17. But our rules clearly state that

unpublished dispositions aren’t authority. Ninth Cir. Rule 36-

UNITED STATES V. BARE 21

3(a). And for good reason: They generally aren’t worded

carefully enough to govern future cases, nor are they exposed

to the type of en banc scrutiny to which published opinions

are subjected. See Hart v. Massanari, 266 F.3d 1155,

1178–79 (9th Cir. 2001). In any event, the memdispos don’t

help the majority. In United States v. Manuel, the defendant

challenged his computer search condition because it was

imposed based on the incorrect assumption that he was a gang

member—not because he didn’t use electronics in committing

his crime. 601 F. App’x 585 (9th Cir. 2015). And the Hayes

defendant used a cell phone to send threatening messages, 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 grasping at straws.

Bare obtained firearms through a small-scale pawn

operation he ran out of his home on the Whippoorwill Navajo

reservation. So informal was his enterprise that FBI agents

didn’t find a single electronic device that was used in

connection with the business at his house. They discovered

only a paper ledger with names and figures. As there’s no

evidence linking Bare’s business to electronics, searching his

computers is an unjustifiable intrusion into his privacy and

that of his family. Because the majority’s new rule breaks

with our precedents and doesn’t advance the goals of

supervised release, I respectfully dissent from the portion of

the opinion approving this supervised release condition.