United States v. Frank Oseguera, Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2020
• Docket: 19-10174
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10174

Plaintiff-Appellee, D.C. No. 3:17-cr-00068-LRH-WGC-1 v.

FRANK ANTHONY OSEGUERA, Jr., MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Submitted February 4, 2020**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

Frank Anthony Oseguera, Jr., appeals from the district court’s judgment and

challenges the 60-month sentence and two conditions of supervised release

imposed following his guilty-plea conviction for being a felon in possession of a

firearm, in violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28

* 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). U.S.C. § 1291, and we affirm.

Oseguera contends that the sentence is substantively unreasonable because

the circumstances did not support the district court’s upward variance from the

Guidelines range. The district court did not abuse its discretion. See Gall v.

United States, 552 U.S. 38, 51 (2007). The above-Guidelines sentence is

substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and totality of

the circumstances, including Oseguera’s criminal history and the nature of the

offense. See Gall, 552 U.S. at 51. Moreover, contrary to Oseguera’s arguments,

the district court adequately explained the upward variance, see United States v.

Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc), and did not rely solely on

Oseguera’s criminal history or put undue weight on that history in imposing the

sentence, see United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir.

2009) (“The weight to be given the various factors in a particular case is for the

discretion of the district court.”).

Oseguera also challenges two conditions of supervised release. Because he

did not object below to either condition, we review for plain error. See United

States v. Blinkinsop, 606 F.3d 1110, 1118 (9th Cir. 2010). The district court did

not plainly err in imposing Special Condition 4, which subjects him to warrantless

searches. While Oseguera contends that the district court had a heightened duty to

explain its imposition of this condition because it involves a “significant liberty

2 19-10174 interest,” he does not point to any authority supporting that contention, see United

States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011) (for error to be

plain, it must be clear or obvious under existing precedent), and this court has held

that a warrantless search condition does not violate the Fourth Amendment, see

United States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007). The district court’s

reasons for imposing the condition are apparent from the record, which reflects that

the condition was warranted in light of Oseguera’s extensive criminal history and

multiple parole violations. See 18 U.S.C. § 3583(d); United States v. Cervantes,

859 F.3d 1175, 1184 (9th Cir. 2017).

Finally, the district court did not plainly err in imposing Standard Condition

13 because Oseguera has not shown that the term “risk” is unconstitutionally

vague. See United States v. Evans, 883 F.3d 1154, 1164 (9th Cir. 2018) (citing

with approval the language used in U.S.S.G. § 5D1.3(c)(12), which mirrors the

language in Standard Condition 13).

AFFIRMED.

3 19-10174