United States v. Gustavo De Luna-Ortiz

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 26, 2019
• Docket: 19-50035
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 26 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50035

Plaintiff-Appellee, D.C. No. 3:18-cr-03715-LAB-1

v. MEMORANDUM* GUSTAVO ABRAHAM DE LUNA- ORTIZ,

Defendant-Appellant.

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

Submitted August 19, 2019**

Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.

Gustavo Abraham De Luna-Ortiz appeals from the district court’s judgment

and challenges the conditions of supervised release imposed following 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,

* 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 in part, and remand with instructions.

De Luna-Ortiz contends that the district court erred by imposing in the

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

pronounce at sentencing. We review de novo. See United States v. Napier, 463

F.3d 1040, 1042 (9th Cir. 2006).

The district court did not err by including in the written judgment standard

supervised release conditions 1, 2, 6, 9, 10, 11, and 12 because the imposition of

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

imposing supervised release.” Id. at 1043.

However, the district court erred by including in the written judgment

conditions 4, 7, and 8 because it did not provide De Luna-Ortiz with the requisite

notice of these now nonstandard conditions. See id. (district court denies

defendant the right to be present for the imposition of sentence if it adds

nonstandard conditions to defendant’s sentence after the sentencing hearing).

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 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 De Luna-Ortiz’s constitutional

challenges to some of the standard conditions included in the written judgment. To

the extent he argues that all of the standard conditions are substantively

2 19-50035 unreasonable because he will not be serving his supervised release in the United

States, we conclude that the district court did not abuse its discretion. See United

States v. Stoterau, 524 F.3d 988, 1002 (9th Cir. 2008).

AFFIRMED in part; VACATED in part; and REMANDED.

3 19-50035