United States v. Francisco Palacios-Guerrero

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 17, 2020
• Docket: 19-50071
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50071

Plaintiff-Appellee, D.C. No. 3:18-cr-04962-LAB-1 v.

FRANCISCO ALFREDO PALACIOS- MEMORANDUM* GUERRERO, AKA Alfredo Palacios- Guerrero,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, Chief District Judge, Presiding

Submitted December 10, 2020** Pasadena, California

Before: GOULD and R. NELSON, Circuit Judges, and COGAN,*** District Judge.

Defendant-Appellant Francisco Palacios-Guerrero appeals from the district

* 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 Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation. court’s judgment and challenges the substantive reasonableness of his 60-month

sentence and the conditions of supervised release imposed after his guilty-plea

conviction for attempted reentry of a removed alien, in violation of

8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in

part, vacate in part, and remand with instructions.

Before sentencing, the Government agreed to recommend a two-level fast-

track departure under the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650

(2003), despite the fact that Appellant had previously received such fast-track

reductions three times. At the sentencing hearing, the district court expressed

concern with Appellant’s extensive criminal and immigration history and engaged

in a lengthy discussion with the Government about why they were offering another

fast-track departure to Appellant. The court declined to grant another fast-track

departure and instead calculated a Guidelines range of 37 to 46 months based on an

adjusted offense level of 15 and a criminal history category of V. Concluding that

the upper end of the range would be insufficient to deter Appellant and promote

respect for the law, the court varied upward from the Guidelines and imposed a 60-

month sentence and three years of supervised release. The court orally announced

two conditions of supervised release: Appellant could not reenter the United States

or violate any United States laws. The written judgment included those two

conditions as well as thirteen additional conditions classified as “mandatory” or

2 “standard.”

Appellant contends that his 60-month sentence is substantively unreasonable

because the district court impermissibly considered perceived disparities in how

the Government recommends fast-track departures. We disagree. We review the

substantive reasonableness of a sentence for abuse of discretion. United States v.

Autery, 555 F.3d 864, 871 (9th Cir. 2009). Sentences are reasonable if they are

based on “rational and meaningful consideration of the factors enumerated in 18

U.S.C. § 3553(a).” United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012).

While one of those factors is “the need to avoid unwarranted sentence disparities”

among similarly-situated defendants, 18 U.S.C. § 3553(a)(6), a district court may

not take fast-track disparities into account in sentencing because they are

considered “warranted” disparities. United States v. Gonzalez-Zotelo, 556 F.3d

736, 738 (9th Cir. 2009).

Contrary to Appellant’s contention, the district court made clear that it based

its decision to impose a higher sentence on its consideration of the § 3553 factors,

and—given Appellant’s extensive history of custodial sentences and deportations

based on that conduct—concluded that those factors could not be consistent with

the Government’s decision to offer a fast-track departure. A sentencing court acts

fully within its discretion when it “consider[s] the defendant’s repetition of the

same or similar offenses” and bases its sentence on that fact. United States v.

3 Segura-Del Real, 83 F.3d 275, 277 (9th Cir. 1996). We conclude that Appellant’s

60-month sentence was not an abuse of discretion.

Appellant next contends that the district court erred by imposing conditions

of supervised release in the written judgment that the court did not orally

pronounce at sentencing. We review whether a written judgment conflicts with the

oral pronouncement of a sentence de novo. United States v. Napier, 463 F.3d

1040, 1042 (9th Cir. 2006). The district court did not err by including additional

supervised release conditions in the written judgment because the imposition of

mandatory and standard conditions “is deemed to be implicit in an oral sentence

imposing supervised release.” Id. at 1043. We do not read the district court’s

reference to two conditions of supervised release as unambiguously asserting that it

intended to impose only two conditions.

However, as the Government concedes, the district court did err by including

conditions 4 and 7 in the written judgment because it did not provide Appellant

with the requisite notice of these now nonstandard conditions. The district court

used an outdated judgment form from 2013, and both conditions have since been

reclassified as “special” conditions, which “cannot be deemed to have been

implicit in the oral imposition of supervised release.” Id.; see U.S.S.G. supp. app.

C amend. 803 (Nov. 1, 2016). For this reason, we conclude that conditions 4 and 7

must be stricken from the judgment.

4 Appellant contends that conditions 3, 5, and 13 should likewise be stricken

because the outdated versions of those conditions—which were used in

Appellant’s judgment—were previously held to be unconstitutionally vague. See

United States v. Evans, 883 F.3d 1154, 1162–63 (9th Cir. 2018). But because it

appears that the district court intended to include in the written judgment the

current versions of standard conditions 3, 5, and 13, we remand to the district court

with instructions to conform the written judgment to the current version of

standard conditions 3, 5, and 13. In light of this disposition, we need not reach

Appellant’s constitutional challenges to the earlier iteration of these conditions.

Finally, Appellant contends that conditions 1, 2, 6, 8, 9, 10, 11 and 12 are

substantively unreasonable because he will not be serving his supervised release in

the United States. A supervised release condition is substantively unreasonable “if

it is not reasonably related to the goal[s] of deterrence, protection of the public, or

rehabilitation of the offender, or if it infringes more on the offender’s liberty than

is ‘reasonably necessary’ to accomplish these statutory goals.” United States v.

Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (cleaned up) (quoting 18 U.S.C.

§ 3583(d)(2)). We conclude that the district court properly considered whether

supervised release would provide an added measure of deterrence and thus did not

abuse its discretion.

AFFIRMED in part; VACATED in part; REMANDED.