United States v. Isai Reynaga

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50287

Plaintiff-Appellee, D.C. No. 3:18-cr-02008-LAB-1

v.

ISAI URIEL REYNAGA, MEMORANDUM*

Defendant-Appellant.

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

Submitted May 21, 2019**

Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.

Isai Uriel Reynaga appeals from the district court’s judgment and challenges

the 30-month sentence and 3 conditions of supervised release imposed upon his

guilty-plea conviction for bringing in aliens without presentation and aiding and

abetting, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) and 18 U.S.C. § 2. We have

* 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). jurisdiction under 28 U.S.C. § 1291, and we affirm in part and vacate and remand

in part.

Reynaga first asserts that his trial counsel was ineffective by failing to

advocate meaningfully for a favorable sentence. “As a general rule, we do not

review challenges to the effectiveness of defense counsel on direct appeal.” United

States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). Neither exception to this

general rule applies here. See id. at 1259-60. In particular, the record here is not

sufficiently developed as to “what counsel did, why it was done, and what, if any,

prejudice resulted.” United States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009).

Reynaga may raise this claim in a 28 U.S.C. § 2255 proceeding. See United States

v. McGowan, 668 F.3d 601, 606 (9th Cir. 2012).

The government concedes, and we agree, that standard supervised release

conditions 4, 5, and 13 in the written judgment are unconstitutionally vague, see

United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir.), cert. denied, 139 S. Ct.

133 (2018), and that condition 4, which requires Reynaga to “support his . . .

dependents,” should be stricken because Reynaga has no dependents. On remand,

the district court should strike condition 4 and modify conditions 5 and 13

consistent with Evans.

Reynaga’s unopposed requests to take judicial notice are granted.

AFFIRMED in part; VACATED and REMANDED in part.

2 18-50287