United States v. Alexandro Virgen

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 25, 2021
• Docket: 20-50153
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50153

Plaintiff-Appellee, D.C. No. 3:10-cr-04905-JAH-1

v. MEMORANDUM* ALEXANDRO JAVIER VIRGEN,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Alexandro Javier Virgen appeals from the district court’s judgment and

challenges four conditions of supervised release imposed on revocation of his

supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm

but remand to correct the judgment.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Virgen challenges the special condition of supervised release that requires

him to submit to warrantless searches “with or without reasonable suspicion.” He

argues that the condition involves a greater deprivation of liberty than is

reasonably necessary because it does not expressly forbid arbitrary, capricious, or

harassing searches. Contrary to Virgen’s contention, this condition need not be

more narrowly tailored to be permissible. See United States v. Cervantes, 859 F.3d

1175, 1184 (9th Cir. 2017) (district courts have discretion to impose suspicionless

search condition). The record reflects that the district court imposed the condition

in light of Virgen’s extensive criminal history and poor performance on

supervision. This was not an abuse of discretion. See id. (upholding suspicionless

search condition where defendant had a significant criminal history and poor

performance on supervised release).

The parties agree, and the record reflects, that the written judgment conflicts

with the oral pronouncement of special conditions of supervised release 1, 3 and 9.

We, therefore, remand to the district court to enter a corrected written judgment

consistent with the court’s oral pronouncement of sentence. See United States v.

Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015) (remand for correction of the

written judgment is warranted when it conflicts with the oral pronouncement of

sentence because the oral pronouncement controls). Specifically, the district court

is directed to strike the phrase “and comply with both United States and Mexican

2 20-50153 immigration law requirements” from special condition 1, and the phrase “[a]llow

for reciprocal release of information between the probation officer and the

treatment provider” from special conditions 3 and 9.

AFFIRMED; REMANDED to correct the judgment.

3 20-50153