Opinion
No. 13-30365
12-16-2014
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOSEPH NEWBILL, Defendant - Appellant.
NOT FOR PUBLICATION
D.C. No. 2:13-cr-00300-RSM-1 MEMORANDUM Appeal from the United States District Court for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted December 9, 2014 Seattle, Washington Before: HAWKINS, McKEOWN, and TALLMAN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Joseph Newbill challenges the sufficiency of the evidence underlying the district court's determination that Newbill violated the terms of his supervised release by committing indecent exposure. We affirm.
Like the district court, we decline to consider the hearsay testimony presented at the revocation hearing. However, we conclude that the admissible evidence of Newbill's statements to investigators and his demeanor during questioning support the district court's conclusion that he "intentionally ma[de] an[] open and obscene exposure of his . . . person . . . knowing that such conduct [was] likely to cause reasonable affront or alarm." Wash. Rev. Code § 9A.88.010(1) (2014). "[V]iewing the evidence in the light most favorable to the government," we conclude that a "rational trier of fact could have found the essential elements of a violation [of supervised release] by a preponderance of the evidence." United States v. King, 608 F.3d 1122, 1129 (9th Cir. 2010) (quoting United States v. Jeremiah, 493 F.3d 1042, 1045 (9th Cir. 2007)) (internal quotation marks omitted).
Even if the district court had erred in its conclusion that Newbill committed indecent exposure, any error would have been harmless. Newbill admitted to three additional Grade C violations of the terms of his supervised release. Given Newbill's criminal history, the Sentencing Guidelines recommended a term of imprisonment of five to eleven months and an additional term of supervised release regardless of whether the district court found three or four Grade C violations. See U.S.S.G. §§ 7B1.3(g)(2), 7B1.4(a); see also United States v. Wing, 682 F.3d 861, 871 (9th Cir. 2012) ("[V]iolations of conditions of a term of supervised release are not individually punished."). Newbill's inappropriate conduct during the term of his supervised release justified the district court's decision to require a psychosexual evaluation. Contrary to Newbill's suggestion, a psychosexual evaluation does not "implicate a particularly significant liberty interest" such that the district court was required to make "heightened findings" before imposing it. United States v. Bainbridge, 746 F.3d 943, 952 n.11 (9th Cir. 2014) (quoting United States v. Stoterau, 524 F.3d 988, 1006 (9th Cir. 2008)).
AFFIRMED.