United States v. Jorge Molina-Madrid

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2018
• Docket: 18-50069
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50069

Plaintiff-Appellee, D.C. No. 3:17-cr-01965-JLS

v. MEMORANDUM* JORGE MOLINA-MADRID,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding

Submitted October 22, 2018**

Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.

Jorge Molina-Madrid appeals from the district court’s judgment and

challenges the three-year term of supervised release and a special condition

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.

* 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). § 1291, and we affirm but remand to correct the judgment.

Molina-Madrid contends that the district court procedurally erred by

imposing a three-year term of supervised release without calculating the supervised

release Guidelines range and by insufficiently explaining its decision to impose the

statutory maximum term of supervision on a deportable alien. We review for plain

error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.

2010), and conclude that there is none. The government asked for a three-year

term as “an added measure of deterrence” in light of Molina-Madrid’s immigration

history and the court expressed similar concerns about the need to deter Molina-

Madrid from returning. On this record, we conclude that the court would have

imposed the same three-year term even absent the alleged errors. See U.S.S.G.

§ 5D1.1 cmt. n.5; United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).

Molina-Madrid next contends that the written judgment conflicts with the

district court’s oral pronouncement of sentence. Because the written special

condition contains two restrictions that were not pronounced orally, we remand to

the district court with instructions that it strike the following portion of the special

condition: “If deported, excluded or allowed to voluntary [sic] return to country of

origin, not reenter the United States illegally and report to the probation officer

within 24 hours of any reentry into the United States.” See United States v. Jones,

696 F.3d 932, 937-38 (9th Cir. 2012).

AFFIRMED; REMANDED to correct the judgment.

2 18-50069