United States v. Antonio Alba-Romero

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2021
• Docket: 20-50063
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50063

Plaintiff-Appellee, D.C. No. 3:19-cr-02215-CAB-1

v.

ANTONIO ALBA-ROMERO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Cathy Ann Bencivengo, District Judge, Presiding

Submitted February 17, 2021**

Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.

Antonio Alba-Romero appeals from the district court’s judgment and

challenges the 12-month term of supervised release imposed following his guilty-

plea conviction for attempted unlawful entry by an alien, in violation of 8 U.S.C.

§ 1325, and attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326.

* 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). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Contrary to Alba-Romero’s contention, the district court’s oral

announcement of a three-year term of supervised release does not require remand.

While he is correct that the supervised release term could not exceed one year, see

18 U.S.C. §§ 3581(b)(5) and 3583(b)(3), the district court properly corrected its

“clear error” by imposing a one-year term in the written judgment. See Fed. R.

Crim. P. 35(a); United States v. Colace, 126 F.3d 1229, 1231 (9th Cir. 1997).

Alba-Romero’s presence was not required for that correction. See Fed. R. Crim. P.

43(b)(4).

Alba-Romero also argues that the district court procedurally erred by

imposing a term of supervised release. We review for plain error, see United

States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude

that there is none. The record reflects that the district court determined supervised

release would provide an additional measure of deterrence given Alba-Romero’s

immigration history and family ties to the United States. See U.S.S.G. § 5D1.1

cmt. n.5. Contrary to Alba-Romero’s argument, the district court did not rely on

any clearly erroneous findings of fact in reaching that conclusion. On this record,

Alba-Romero has not shown a reasonable probability of a different sentence absent

the cumulative impact of the district court’s alleged procedural errors in imposing

supervised release. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir.

2 20-50063 2008); see also United States v. Necoechea, 986 F.2d 1273, 1282-83 (9th Cir.

1993) (cumulative impact of possible plain errors is reviewed for plain error).

AFFIRMED.

3 20-50063