NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50360
Plaintiff-Appellee, D.C. No. 3:17-cr-03172-AJB-1 v.
ALVARO ANTONIO DOMINGUEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding
Submitted May 7, 2020** Pasadena, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and HELLERSTEIN,*** District Judge.
Alvaro Dominguez appeals from the district court’s judgment and challenges
his sentence for possession of methamphetamine with intent to distribute, in
* 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). *** The Honorable Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. violation of 21 U.S.C. § 841. The district court sentenced Dominguez to a forty-
six-month term of incarceration, to be followed by a three-year period of
supervised release that is subject to various conditions—including a special
condition which forbids him from entering or residing in Mexico without
permission of the district court or his probation officer. Dominguez challenges his
custodial sentence as substantively unreasonable; the above-mentioned special
condition as procedurally and substantively unreasonable; and several of the
standard conditions of supervision as either unconstitutionally vague or wrongfully
imposed without notice based on amendments to the Sentencing Guidelines and
this circuit’s case law. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742. We affirm in part, vacate in part, and remand.
We review the substantive reasonableness of a sentence for an abuse of
discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). De novo
review applies to claims that conditions of supervised release violate the
Constitution, United States v. Evans, 883 F.3d 1154, 1159–60 (9th Cir. 2018), and
when a defendant is denied notice of the imposition of a non-standard condition of
supervised release, United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006).
Finally, we review conditions of supervised release for plain error if, as was the
case here with respect to the special condition challenged on appeal, the defendant
fails to object at the time they are imposed. United States v. Jeremiah, 493 F.3d
2 1042, 1046 (9th Cir. 2007).
1. The custodial sentence imposed by the district court is substantively
reasonable. It is evident from the record that the district court carefully considered
the totality of the circumstances in determining the forty-six-month below-
Guidelines sentence. See Gall v. United States, 552 U.S. 38, 51 (2007); see also
United States v. Whitehead, 532 F.3d 991, 992–93 (9th Cir. 2008) (per curiam)
(affirming below-Guidelines sentence based on district court’s reasoning). In
doing so, the district court considered the 18 U.S.C. § 3553(a) factors, in addition
to the Sentencing Guidelines, and explained its deviation from the Guidelines
range. Id. The district court, probation department, government, and defense
agreed that the applicable Guidelines range was seventy to eighty-seven
months. The government recommended a fifty-eight-month custodial
sentence. Probation recommended sixty months. Dominguez requested eighteen
months. Citing Dominguez’s age and lack of education, the district court departed
downward four levels from the otherwise applicable offense level and arrived at a
Guidelines range of forty-six to fifty-seven months. The record does not support
Dominguez’s contentions that the sentence was illogical, arbitrary, or failed to
account for Dominguez’s age and maturity level.
2. The district court plainly erred—procedurally and substantively—
when it imposed the special condition of supervised release prohibiting Dominguez
3 from residing in Mexico without permission of the district court or his probation
officer. Because the special condition implicates Dominguez’s right to familial
association, the district court was required to make special findings on the record,
supported by evidence in the record, that the special condition is necessary for
deterrence, protection of the public, or rehabilitation, and that it involves no greater
deprivation of liberty than reasonably necessary. United States v. Wolf Child, 699
F.3d 1082, 1087 (9th Cir. 2012). Because the district court made no such findings,
and it failed to conduct an individualized examination of Dominguez’s relationship
with the affected family members, it committed procedural error. Id. at 1087–
88. Our precedent equates this procedural error with reversible error under plain
error review. Id. at 1095. That Dominguez may enter or reside in Mexico if he
obtains permission from the district court or his probation officer is irrelevant. Id.
at 1096.
The district court’s imposition of the special condition was also
substantively unreasonable to the extent it prohibits Dominguez from residing with
his family. Nothing in the record would support a finding that this restriction on
his right to familial association involves no greater deprivation of liberty than is
reasonably necessary to accomplish the goals of deterrence, protection of the
public, or rehabilitation. Id. at 1096–97. The record indicates that Dominguez’s
family is a supportive and positive influence; that they do not have immigration
4 privileges to enter the United States; that Dominguez was financially dependent on
his parents at the time of his arrest; that he does not speak English; that he has
never lived in the United States; and that he has a low risk of reoffending.
We therefore vacate the special condition and remand to the district court for
resentencing. Conditions imposed on Dominguez on remand should be narrowly
drawn, and reasonably related to the statutory goals of supervised release and
involve no greater deprivation of Dominguez’s liberty than reasonably necessary to
accomplish these goals. Id. at 1103; U.S.S.G. § 5D1.3(b). We again note from the
record that Dominguez, although a U.S. citizen, does not have residence in the
United States. Before his detention, he lived with his family in Mexico. His
family is not authorized to enter the United States. The standard conditions of
supervised release, implicit in every criminal judgment—but subject to the
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 1 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50360
Plaintiff-Appellee, D.C. No. 3:17-cr-03172-AJB-1 v.
ALVARO ANTONIO DOMINGUEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding
Submitted May 7, 2020** Pasadena, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and HELLERSTEIN,*** District Judge.
Alvaro Dominguez appeals from the district court’s judgment and challenges
his sentence for possession of methamphetamine with intent to distribute, in
* 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). *** The Honorable Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. violation of 21 U.S.C. § 841. The district court sentenced Dominguez to a forty-
six-month term of incarceration, to be followed by a three-year period of
supervised release that is subject to various conditions—including a special
condition which forbids him from entering or residing in Mexico without
permission of the district court or his probation officer. Dominguez challenges his
custodial sentence as substantively unreasonable; the above-mentioned special
condition as procedurally and substantively unreasonable; and several of the
standard conditions of supervision as either unconstitutionally vague or wrongfully
imposed without notice based on amendments to the Sentencing Guidelines and
this circuit’s case law. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742. We affirm in part, vacate in part, and remand.
We review the substantive reasonableness of a sentence for an abuse of
discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). De novo
review applies to claims that conditions of supervised release violate the
Constitution, United States v. Evans, 883 F.3d 1154, 1159–60 (9th Cir. 2018), and
when a defendant is denied notice of the imposition of a non-standard condition of
supervised release, United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006).
Finally, we review conditions of supervised release for plain error if, as was the
case here with respect to the special condition challenged on appeal, the defendant
fails to object at the time they are imposed. United States v. Jeremiah, 493 F.3d
2 1042, 1046 (9th Cir. 2007).
1. The custodial sentence imposed by the district court is substantively
reasonable. It is evident from the record that the district court carefully considered
the totality of the circumstances in determining the forty-six-month below-
Guidelines sentence. See Gall v. United States, 552 U.S. 38, 51 (2007); see also
United States v. Whitehead, 532 F.3d 991, 992–93 (9th Cir. 2008) (per curiam)
(affirming below-Guidelines sentence based on district court’s reasoning). In
doing so, the district court considered the 18 U.S.C. § 3553(a) factors, in addition
to the Sentencing Guidelines, and explained its deviation from the Guidelines
range. Id. The district court, probation department, government, and defense
agreed that the applicable Guidelines range was seventy to eighty-seven
months. The government recommended a fifty-eight-month custodial
sentence. Probation recommended sixty months. Dominguez requested eighteen
months. Citing Dominguez’s age and lack of education, the district court departed
downward four levels from the otherwise applicable offense level and arrived at a
Guidelines range of forty-six to fifty-seven months. The record does not support
Dominguez’s contentions that the sentence was illogical, arbitrary, or failed to
account for Dominguez’s age and maturity level.
2. The district court plainly erred—procedurally and substantively—
when it imposed the special condition of supervised release prohibiting Dominguez
3 from residing in Mexico without permission of the district court or his probation
officer. Because the special condition implicates Dominguez’s right to familial
association, the district court was required to make special findings on the record,
supported by evidence in the record, that the special condition is necessary for
deterrence, protection of the public, or rehabilitation, and that it involves no greater
deprivation of liberty than reasonably necessary. United States v. Wolf Child, 699
F.3d 1082, 1087 (9th Cir. 2012). Because the district court made no such findings,
and it failed to conduct an individualized examination of Dominguez’s relationship
with the affected family members, it committed procedural error. Id. at 1087–
88. Our precedent equates this procedural error with reversible error under plain
error review. Id. at 1095. That Dominguez may enter or reside in Mexico if he
obtains permission from the district court or his probation officer is irrelevant. Id.
at 1096.
The district court’s imposition of the special condition was also
substantively unreasonable to the extent it prohibits Dominguez from residing with
his family. Nothing in the record would support a finding that this restriction on
his right to familial association involves no greater deprivation of liberty than is
reasonably necessary to accomplish the goals of deterrence, protection of the
public, or rehabilitation. Id. at 1096–97. The record indicates that Dominguez’s
family is a supportive and positive influence; that they do not have immigration
4 privileges to enter the United States; that Dominguez was financially dependent on
his parents at the time of his arrest; that he does not speak English; that he has
never lived in the United States; and that he has a low risk of reoffending.
We therefore vacate the special condition and remand to the district court for
resentencing. Conditions imposed on Dominguez on remand should be narrowly
drawn, and reasonably related to the statutory goals of supervised release and
involve no greater deprivation of Dominguez’s liberty than reasonably necessary to
accomplish these goals. Id. at 1103; U.S.S.G. § 5D1.3(b). We again note from the
record that Dominguez, although a U.S. citizen, does not have residence in the
United States. Before his detention, he lived with his family in Mexico. His
family is not authorized to enter the United States. The standard conditions of
supervised release, implicit in every criminal judgment—but subject to the
discretion of the district judge if the judge believes them to be inapplicable,
Napier, 463 F.3d at 1043—require defendants to have an “authorized residence”
within the district, and to obtain permission for travel outside the district, U.S.S.G.
§ 5D1.3(c)(1), (3). The district judge should exercise his discretion as to whether
these conditions are appropriate under the circumstances and determine if
Dominguez—a young man who will be approximately twenty-one years old upon
release—is to live with his family in Mexico, or whether an authorized residence
within the district may be required, along with travel rights to Mexico.
5 3. The district court also imposed the following formerly standard
conditions of supervised release on Dominguez:
No. 4 – The defendant shall support his or her dependents and meet other family responsibilities.
No. 5 – The defendant shall work regularly at a lawful occupation, unless excused by the probation officer for schooling, training, or other acceptable reasons.
No. 7 – The defendant shall refrain from excessive use of alcohol and shall not purchase, possess, use, distribute, or administer any controlled substance or any paraphernalia related to any controlled substances, except as prescribed by a physician.
No. 8 – The defendant shall not frequent places where controlled substances are illegally sold, used, distributed, or administered.
No. 13 – As directed by the probation officer, the defendant shall notify third parties of risks that may be occasioned by the defendant’s criminal record or personal history or characteristics and shall permit the probation officer to make such notifications and to confirm the defendant’s compliance with such notification requirement.
We recently held that conditions identical to Conditions Four, Five, and Thirteen
are unconstitutionally vague. Evans, 883 F.3d at 1162–64. Furthermore,
Condition Four does not apply to Dominguez, as he does not have any
dependents. Additionally, a November 2016 Guidelines amendment—which pre-
dates Dominguez’s sentencing—rephrased and incorporated Condition Seven into
a special condition relating to substance abuse and eliminated Condition Eight
altogether. The government concedes these conditions were unlawfully imposed.
Accordingly, we vacate these conditions.
6 In summary, we affirm the custodial sentence, vacate the aforementioned
conditions of supervised release, and remand for the district court to impose
conditions of supervised release that are consistent with this order.
AFFIRMED in part; VACATED in part; and REMANDED.