United States v. Jose Ortiz

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 22 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50056

Plaintiff-Appellee, D.C. No. 2:16-cr-00441-PA-1

v. MEMORANDUM*

JOSE ORTIZ, Defendant- Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted August 6, 2018** Pasadena, California

Before: CLIFTON and CALLAHAN, Circuit Judges, and HOYT,*** District Judge.

* 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 Kenneth M. Hoyt, United States District Judge for the Southern District of Texas, sitting by designation. Appellant Jose Ortiz appeals, on statutory and constitutional grounds, the

district court’s imposition of a special condition of supervised release restricting

his use of any name other than his “true legal name,” following his guilty plea to

possession of a firearm and ammunition in violation of 18 U.S.C. § 922(g)(1).1 We

have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review

conditions of supervised release for abuse of discretion. See United States v. Wolf

Child, 699 F.3d 1082, 1089-90 (9th Cir. 2012). We affirm.2

Ortiz contends that the district court’s imposition of special condition seven,

which prohibits him from obtaining, possessing or using any form of identification

in any name, other than his “true legal name,” without the prior written approval of

his probation officer, constitutes an abuse of discretion and subjects him to further

imprisonment for using his English name. Ortiz also contends that this special

release condition violates his liberty interest because it is not reasonably related to

the offense, his criminal history, his character, or necessary to promote deterrence

or public protection. See 18 U.S.C § 3583(d); U.S.S.G. § 5D1.3(b).

Supervised release condition seven is not impermissibly overbroad such that

it impinges on any fundamental liberty interest Ortiz might have in his name. After

1 Although Ortiz does not expressly invoke due process in his opening brief, his material citations would seem to indicate that the constitutional issue is before us. Accordingly, we proceed under this assumption. 2 As the parties are familiar with the facts and procedural history, we restate them only as necessary to explain our decision.

2 all, his true legal name is Jose Ortiz. Nevertheless, he asserts that the name “Joseph”

is his alias and is the English version of his true name “Jose,” therefore there is no

evidentiary basis, other than speculation, that he has used false identification in the

past. That contention is unavailing.

Title 18 U.S.C. § 3583(d) establishes the circumstances for imposing

conditions of supervised release. A court may order a condition of supervised

release so long as it is reasonably related to section 3553(a) sentencing factors,

involves no greater restraint of liberty than is reasonably necessary under the

sentence imposed, and is consistent with pertinent policy statements issued by the

United States Sentencing Commission. Wolf Child, 699 F.3d at 1089-90.

Ortiz mischaracterizes the scope of the district court’s order. Special

condition seven simply prohibits the appellant from obtaining or possessing a

“driver’s license, social security number, birth certificate, passport or any other form

of identification in any name, other than the [appellant’s] true name.” It does not

prevent Ortiz or his friends from referring to him/himself as “Joseph.” Clearly, the

district court’s order sets parameters designed to curb criminal conduct on the part

of Ortiz through documents in a name other than his legal name. The district court

stated that the condition was “designed to make it more difficult for [Ortiz] to use

another name while on supervision or to use that name to illegally obtain a firearm,

3 given the fact this is not [Ortiz’s] first time . . . possessi[ng] . . . a firearm and is

consistent with his current status.”

The record shows that Ortiz has an extensive, violent criminal history dating

back to age 16 when he associated with street gangs, including convictions for

carrying a concealed weapon and assault with a deadly weapon with force. His

history also reveals that he used names other than his legal name in other criminal

activities. The district judge’s statement of reasons, the evidence, and Ortiz’s

lengthy criminal history adequately explain the judge’s reasons for imposing

supervised release condition seven. Condition seven is reasonably related to the

goals of supervised release and does not materially offend the appellant’s liberty

interest. See 18 U.S.C. § 3583(d); see also United States v. Stoterau, 524 F.3d 988,

1005 (9th Cir. 2008) (internal citation omitted).

Ortiz’s sentence containing supervised release condition seven is

AFFIRMED.