United States v. Francisco Hernandez-Barreras

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 24, 2021
• Docket: 20-10086
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 24 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10086

Plaintiff-Appellee, D.C. No. 2:19-cr-01322-GMS-1 v.

FRANCISCO JAVIER HERNANDEZ- MEMORANDUM* BARRERAS, AKA Francisco Hernandez- Barreras,

Defendant-Appellant.

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

Argued and Submitted February 5, 2021 Phoenix, Arizona

Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.

Francisco Hernandez-Barreras challenges the district court’s imposition of

supervised release and standard conditions following his conviction for illegal

reentry in violation of 8 U.S.C. § 1326. We have jurisdiction under 18 U.S.C.

§ 3742(a) and 28 U.S.C. § 1291. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. The district court did not abuse its discretion by imposing supervised

release. The district court’s application of the Sentencing Guidelines to the facts of

the case is reviewed for abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d

1167, 1170 (9th Cir. 2017) (en banc). A district court “ordinarily should not impose

a term of supervised release” where the defendant “likely will be deported after

imprisonment.” U.S.S.G. § 5D1.1(c). However, a district court may impose

supervised release if it gives “a specific and particularized explanation that

supervised release would provide an added measure of deterrence and protection

based on the facts of [the defendant’s] case.” United States v. Valdavinos-Torres,

704 F.3d 679, 693 (9th Cir. 2012). Here, the district court considered Hernandez-

Barreras’s case and explained why a term of supervised release was “warranted

under the circumstances.” This was not an abuse of discretion.

2. The district court did not plainly err in imposing standard conditions of

supervised release. Hernandez-Barreras argues for the first time on appeal that the

district court erred by imposing standard conditions “that are unclear, and in some

cases impossible to comply with, for a supervisee who has been deported.” Because

he failed to raise this issue to the district court, we review for plain error. United

States v. Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011). To demonstrate plain error,

Hernandez-Barreras must show that the error he asserts “is so clear-cut, so obvious,

a competent district judge should be able to avoid it without benefit of objection.”

2 Claiborne v. Blauser, 934 F.3d 885, 898 (9th Cir. 2019) (quoting United States v.

Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011)). “An error cannot be plain

where there is no controlling authority on point and where the most closely

analogous precedent leads to conflicting results.” United States v. Wijegoonaratna,

922 F.3d 983, 991 (9th Cir. 2019) (internal quotation marks and citation omitted).

Assuming without deciding that there was error, Hernandez-Barreras has not shown

that the error was plain.

AFFIRMED.