United States v. Antonio Alvarez-Moreno

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 18, 2018
• Docket: 18-10047
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 18-10047 18-10049 Plaintiff-Appellee, D.C. Nos. 2:17-cr-01402-GMS v. 2:17-cr-00460-GMS

ANTONIO ALVAREZ-MORENO, a.k.a. Antonio Alvarez, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona G. Murray Snow, District Judge, Presiding

Submitted September 12, 2018**

Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

In these consolidated appeals, Antonio Alvarez-Moreno appeals the sentence

imposed following his guilty-plea conviction for reentry of a removed alien, in

violation of 8 U.S.C. § 1326, and revocation of his supervised release. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

* 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). In Appeal No. 18-10047, Alvarez-Moreno contends that the district court

procedurally erred by imposing a three-year term of supervised release without

explicitly addressing U.S.S.G. § 5D1.1(c), which states that the court ordinarily

should not impose supervised release when the defendant is a deportable alien who

likely will be deported after imprisonment. 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 makes clear that, even if the court had explicitly

acknowledged the Guidelines provision at issue, it would have imposed the same

three-year term of supervised release given its concerns about the need to deter

Alvarez-Moreno. See U.S.S.G. § 5D1.1 cmt. n.5; United States v. Dallman, 533

F.3d 755, 762 (9th Cir. 2008) (no plain error where a defendant cannot show “a

reasonable probability that he would have received a different sentence” absent the

alleged error).

Alvarez-Moreno next argues that the district court imposed inappropriate,

unlawful, or vague supervised release conditions. The district court did not plainly

err. See United States v. Garcia, 522 F.3d 855, 860 (9th Cir. 2008). Given

Alvarez-Moreno’s representation that he was pursuing legal status in the United

States, the district court imposed conditions that were reasonably related to

“deterrence, protection of the public, or rehabilitation.” United States v. Watson,

582 F.3d 974, 982 (9th Cir. 2009) (citation and quotation omitted). Further,

2 18-10047 & 18-10049 contrary to Alvarez-Moreno’s contentions, the challenged conditions are not “so

vague that [they] fail[] to provide people of ordinary intelligence with fair notice of

what is prohibited.” United States v. Sims, 849 F.3d 1259, 1260 (9th Cir. 2017).

In Appeal No. 18-10049, Alvarez-Moreno appeals the judgment revoking

his supervised release. No term of supervised release was imposed in those

proceedings, and Alvarez-Moreno does not challenge any aspect of the revocation

or the four-month consecutive custodial sentence imposed upon revocation. Thus,

any challenge to the judgment revoking supervised release is waived. See United

States v. Loya, 807 F.2d 1483, 1486-87 (9th Cir. 1987).

AFFIRMED.

3 18-10047 & 18-10049