UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 97-50365
)
Plaintiff-Appellee, ) D.C. No. CR-95-00603-MRP-1
)
v. )
)
KEVIN MITNICK, ) MEMORANDUM*
)
Defendant-Appellant. )
)
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Appeal from the United States District Court
for the Central District of California
Mariana R. Pfaelzer, District Judge, Presiding
Submitted May 14, 1998**
Before: SCHROEDER, TROTT, and FERNANDEZ, Circuit Judges.
Kevin Mitnick appeals his sentence following his guilty plea
to possession of unauthorized access devices with the intent to
defraud in violation of 18 U.S.C. § 1029(a)(3). We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Mitnick contends that the district court erred by imposing
conditions of supervised release which restricted Mitnick's access
to computers, computer-related equipment, and certain
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* This disposition is not appropriate for publication and may
not be cited to or by the courts of this circuit except as pro-
vided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision
without oral argument. See Fed. R. App. P. 34(a); 9th Cir.
R. 34-4. Accordingly, Mitnick's request for oral argument is de-
nied.
(2)
telecommunications devices, including cellular telephones, without
the prior approval of Mitnick's probation officer. We review for
abuse of discretion. See United States v. Chinske, 978 F.2d 557,
559-60 (9th Cir. 1992). We conclude that the district court did
not abuse its discretion because the conditions imposed are
reasonably related to legitimate sentencing goals and are no more
restrictive than necessary.1/ See id. (district court has broad
discretion in setting conditions of supervised release); U.S.S.G.
§ 5D1.3(b) (1995). We also reject Mitnick's specific contention
that the supervised release conditions impermissibly restrict the
exercise of his First Amendment rights. See United States v.
Bolinqer, 940 F.2d 478, 480-81 (9th Cir. 1991) (upholding
probation condition which restricted defendant's freedom of
association). Mitnick's challenge to the supervised release
conditions on vagueness grounds because "computer" and other terms
are not defined also fails because the conditions give Mitnick
fair notice of what is prohibited. Cf. United States v.
Fitzqerald, 882 F.2d 397, 398 (9th Cir. 1989) (stating that courts
look to common understanding of terms when analyzing a statute for
vagueness).
Mitnick also contends that the district court erred by
imposing supervised release conditions which restrict his
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l/ We reject Mitnick's claim that requiring the probation
officer's approval is an impermissible delegation of the district
court's authority. The fact that Mitnick may engage in otherwise
prohibited conduct with the probation officer's approval makes
the conditions imposed less restrictive that an outright ban on such
conduct.
(3)
employment in the computer and telecommunications industries and
employment in which Mitnick would have access to computers and
computer-related equipment, without prior approval of the
probation officer. The district court did not abuse its
discretion because a reasonably direct relationship existed
between Mitnick's occupation and the offense of conviction and
because such a restriction is reasonably necessary to protect the
public. See U.S.S.G. § 5F1.5 (1995); United States v. Terrigno,
838 F.2d 371, 374 (9th Cir. 1987).
Finally, we reject Mitnick's contention that remand is
appropriate because he believes that the district court did not
understand that the standard supervised release condition that a
defendant refrain from unlawful use of a controlled substance and
submit to drug testing could be ameliorated or suspended. See 18
U.S.C. § 3583(d) (stating that the court shall order drug testing
as an explicit condition of supervised release but that the court
may ameliorate or suspend such a condition).
AFFIRMED.