United States v. Francisco Gallegos-Lopez

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 19, 2018
• Docket: 17-50420
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 19 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50420

Plaintiff-Appellee, D.C. No. 3:17-cr-001438-BEN-2

v. MEMORANDUM* FRANCISCO GALLEGOS-LOPEZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Honorable Roger T. Benitez, District Judge, Presiding

Submitted December 17, 2018**

Before: WALLACE, SILVERMAN, and McKEOWN, Circuit Judges.

Francisco Gallegos-Lopez appeals from the district court’s judgment and

challenges the above-Guidelines 41-month sentence imposed following his guilty-

plea conviction for harboring an alien, in violation of 8 U.S.C. § 1324(a)(1)(A)(iii)

and (v)(II). We have jurisdiction under 28 U.S.C. § 1291. We affirm in part, and

* 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). vacate and remand in part.

Gallegos-Lopez contends that the district court procedurally erred by first

determining and imposing the sentence, and then calculating the correct Guidelines

range. See, e.g., Peugh v. United States, 569 U.S. 530, 541 (2013) (“[D]istrict

courts must begin their analysis with the Guidelines and remain cognizant of them

throughout the sentencing process.”) (internal quotations omitted). We review the

district court’s sentencing procedure for plain error because Gallegos-Lopez failed

to preserve the issue properly at the sentencing hearing. United States v. Valencia-

Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). On this record, we conclude that

there is none. Gallegos-Lopez informed the court at the start of the hearing that the

parties agreed upon the Guidelines range, and the court noted both that it had

reviewed the sentencing memoranda and that there were no objections to the

presentence report. Further, the court’s discussion of the 18 U.S.C. § 3553(a)

sentencing factors throughout the hearing demonstrates that it was considering

whether and why to vary from the agreed-upon Guidelines range. Thus, despite

the district court’s failure to calculate the Guidelines range at the outset of the

hearing, the record reflects that it was aware of the range and had the correct range

in mind throughout the proceeding.

To the extent Gallegos-Lopez also challenges the substantive reasonableness

of his sentence, we conclude the district court did not abuse its discretion. See

2 17-50420 United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). The record reflects a

rational and meaningful consideration of the section 3553(a) factors, and the

totality of the circumstances support the sentence. See Autery, 555 F.3d at 878.

Contrary to Gallegos-Lopez’s contention, the district court did not err when

it refused to recommend Gallegos-Lopez serve his sentence at a prison with a

“drop-out” facility. See 18 U.S.C. § 3621(b) (recommendations by sentencing

court to BOP are non-binding). However, we agree with Gallegos-Lopez, and the

government concedes, that the case should be remanded because the court added

three non-standard conditions of supervised release to the sentence after the

sentencing hearing without notice to Gallegos-Lopez. See United States v. Napier,

463 F.3d 1040, 1042–43 (9th Cir. 2006). We thus remand and instruct the district

court to strike conditions 4, 7, and 8 from the written judgment. See United States

v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993) (where there is a direct conflict

between the oral pronouncement and the written judgment, remedy is remand to

the district court to make the written judgment consistent with the oral

pronouncement).

AFFIRMED IN PART; VACATED AND REMANDED IN PART.

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