NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50097
Plaintiff-Appellee, D.C. No. 3:18-cr-04862-LAB-1 v.
JOSE ROSARIO-MONTALVO, AKA Jose MEMORANDUM* Montalvo-Rosario,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Larry A. Burns, Chief District Judge, Presiding
Argued and Submitted May 5, 2020 Pasadena, California
Before: GOULD and CHRISTEN, Circuit Judges, and HELLERSTEIN,** District Judge.
Defendant-Appellant Jose Rosario-Montalvo appeals his sentence of 41
months of imprisonment and three years of supervised release for the felony of
illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. court explained that the sentence was necessary to deter Rosario-Montalvo, who
had three immigration-related convictions, had been deported eight times, and was
not deterred sufficiently by a prior 37-month sentence for the same type of crime.
Rosario-Montalvo argues that the custodial sentence is substantively and
procedurally unreasonable due to the court’s reliance on a misunderstanding of
fact; that the imposition of mandatory and standard conditions of supervised
release in the written judgment conflicted with the oral pronouncement of
sentence, which did not mention mandatory or standard conditions; and that certain
of the standard conditions of supervised release are substantively unreasonable,
unconstitutionally vague, or both.
In determining Rosario-Montalvo’s sentence, the district court applied a
one-level fast track departure instead of the Government’s recommended two-level
departure, thereby raising the Guidelines range of custodial punishment. Rosario-
Montalvo argues the sentence is substantively and procedurally unreasonable
because the district court misunderstood Rosario-Montalvo’s history of fast-track
dispositions for prior convictions. We review the substantive reasonableness of the
sentence for abuse of discretion. United States v. Ressam, 679 F.3d 1069, 1086
(9th Cir. 2012). Because defense counsel failed to object to the alleged procedural
error at sentencing, we review it for plain error. United States v. Rangel, 697 F.3d
795, 800 (9th Cir. 2012).
2 19-50097 An erroneous finding of fact can give rise to a sentence that is substantively
or procedurally unreasonable. Ressam, 679 F.3d at 1086; United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc). Early in the sentencing hearing, there
was confusion in an exchange between the district court and the prosecutor about
whether Rosario-Montalvo had received a fast-track disposition in the past. They
were essentially talking past each other, with the district court referring to a 2010
conviction where Rosario-Montalvo received fast-track treatment, while the
prosecutor was referring to a 2011 conviction where Rosario-Montalvo did not
receive fast-track treatment. Nonetheless, before imposing the sentence, the
district court resolved the confusion and correctly recited Rosario-Montalvo’s
history with respect to fast-track treatment. Therefore, the district court did not
rely on an erroneous finding of fact, and the sentence was reasonable in relation to
Rosario-Montalvo’s prior history of illegal entries into the United States. The
custodial sentence of 41 months is affirmed.
Rosario-Montalvo also argues that all but two conditions of supervised
release must be vacated. At the sentencing, the district court announced two
conditions of supervised release: a special condition prohibiting Rosario-Montalvo
from reentering the United States and a mandatory condition prohibiting Rosario-
Montalvo from violating the law. The court did not refer to any other conditions.
The written judgment that followed included these two conditions, along with
3 19-50097 mandatory and standard conditions. Compounding the issue, the district court used
an outdated judgment form that included standard conditions that are no longer
recommended. Furthermore, the written judgment did not note whether Rosario-
Montalvo, who will likely be deported following his custodial sentence, will be
free of supervision while outside the United States.
Rosario-Montalvo argues that all but the two conditions announced at
sentencing must be vacated because they conflict with the oral pronouncement;
that Standard Conditions Four, Five, Seven, and Thirteen also should be vacated
because they are unconstitutionally vague; that Standard Conditions One, Two,
Six, Eight, Nine, Ten, Eleven, and Twelve should be vacated because they are
substantively unreasonable, since Rosario-Montalvo will be deported to Mexico;
and that Standard Condition Three is both unconstitutionally vague and
substantively unreasonable.
Because a defendant has a right under the Sixth Amendment and Federal
Rule of Criminal Procedure 43(a)(3) to be present at his sentencing, “[t]he actual
imposition of a sentence occurs at the oral sentencing, not when the written
judgment later issues.” United States v. Napier, 463 F.3d 1040, 1042 (9th Cir.
2006). As a result, “it has long been the rule that, when an oral sentence is
unambiguous, it controls over a written sentence that differs from it.” Id. We
review this issue de novo. Id.
4 19-50097 In Napier, the district court stated during sentencing that additional
conditions would apply, but it did not specify what they were. See id. Under those
circumstances, we held that the “imposition of . . . mandatory and standard
conditions is deemed to be implicit in an oral sentence imposing supervised
release.” Id. at 1043. This is particularly true for mandatory conditions, which the
district court is required by law to impose. See 18 U.S.C § 3583(d) (listing
mandatory conditions that “[t]he court shall order, as an explicit condition of
supervised release”); United States v. Evans, 883 F.3d 1154, 1162 n.4 (9th Cir.
2018) (noting mandatory conditions “must be imposed on any defendant placed on
supervised release”). Thus, the mandatory conditions in Rosario-Montalvo’s case
do not conflict with the oral pronouncement of sentence, and they are affirmed.
“A condition of supervised release violates due process ‘if it either forbids or
requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application.’” Evans, 883
F.3d at 1160 (quoting United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004)).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50097
Plaintiff-Appellee, D.C. No. 3:18-cr-04862-LAB-1 v.
JOSE ROSARIO-MONTALVO, AKA Jose MEMORANDUM* Montalvo-Rosario,
Defendant-Appellant.
Appeal from the United States District Court for the Southern District of California Larry A. Burns, Chief District Judge, Presiding
Argued and Submitted May 5, 2020 Pasadena, California
Before: GOULD and CHRISTEN, Circuit Judges, and HELLERSTEIN,** District Judge.
Defendant-Appellant Jose Rosario-Montalvo appeals his sentence of 41
months of imprisonment and three years of supervised release for the felony of
illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. court explained that the sentence was necessary to deter Rosario-Montalvo, who
had three immigration-related convictions, had been deported eight times, and was
not deterred sufficiently by a prior 37-month sentence for the same type of crime.
Rosario-Montalvo argues that the custodial sentence is substantively and
procedurally unreasonable due to the court’s reliance on a misunderstanding of
fact; that the imposition of mandatory and standard conditions of supervised
release in the written judgment conflicted with the oral pronouncement of
sentence, which did not mention mandatory or standard conditions; and that certain
of the standard conditions of supervised release are substantively unreasonable,
unconstitutionally vague, or both.
In determining Rosario-Montalvo’s sentence, the district court applied a
one-level fast track departure instead of the Government’s recommended two-level
departure, thereby raising the Guidelines range of custodial punishment. Rosario-
Montalvo argues the sentence is substantively and procedurally unreasonable
because the district court misunderstood Rosario-Montalvo’s history of fast-track
dispositions for prior convictions. We review the substantive reasonableness of the
sentence for abuse of discretion. United States v. Ressam, 679 F.3d 1069, 1086
(9th Cir. 2012). Because defense counsel failed to object to the alleged procedural
error at sentencing, we review it for plain error. United States v. Rangel, 697 F.3d
795, 800 (9th Cir. 2012).
2 19-50097 An erroneous finding of fact can give rise to a sentence that is substantively
or procedurally unreasonable. Ressam, 679 F.3d at 1086; United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc). Early in the sentencing hearing, there
was confusion in an exchange between the district court and the prosecutor about
whether Rosario-Montalvo had received a fast-track disposition in the past. They
were essentially talking past each other, with the district court referring to a 2010
conviction where Rosario-Montalvo received fast-track treatment, while the
prosecutor was referring to a 2011 conviction where Rosario-Montalvo did not
receive fast-track treatment. Nonetheless, before imposing the sentence, the
district court resolved the confusion and correctly recited Rosario-Montalvo’s
history with respect to fast-track treatment. Therefore, the district court did not
rely on an erroneous finding of fact, and the sentence was reasonable in relation to
Rosario-Montalvo’s prior history of illegal entries into the United States. The
custodial sentence of 41 months is affirmed.
Rosario-Montalvo also argues that all but two conditions of supervised
release must be vacated. At the sentencing, the district court announced two
conditions of supervised release: a special condition prohibiting Rosario-Montalvo
from reentering the United States and a mandatory condition prohibiting Rosario-
Montalvo from violating the law. The court did not refer to any other conditions.
The written judgment that followed included these two conditions, along with
3 19-50097 mandatory and standard conditions. Compounding the issue, the district court used
an outdated judgment form that included standard conditions that are no longer
recommended. Furthermore, the written judgment did not note whether Rosario-
Montalvo, who will likely be deported following his custodial sentence, will be
free of supervision while outside the United States.
Rosario-Montalvo argues that all but the two conditions announced at
sentencing must be vacated because they conflict with the oral pronouncement;
that Standard Conditions Four, Five, Seven, and Thirteen also should be vacated
because they are unconstitutionally vague; that Standard Conditions One, Two,
Six, Eight, Nine, Ten, Eleven, and Twelve should be vacated because they are
substantively unreasonable, since Rosario-Montalvo will be deported to Mexico;
and that Standard Condition Three is both unconstitutionally vague and
substantively unreasonable.
Because a defendant has a right under the Sixth Amendment and Federal
Rule of Criminal Procedure 43(a)(3) to be present at his sentencing, “[t]he actual
imposition of a sentence occurs at the oral sentencing, not when the written
judgment later issues.” United States v. Napier, 463 F.3d 1040, 1042 (9th Cir.
2006). As a result, “it has long been the rule that, when an oral sentence is
unambiguous, it controls over a written sentence that differs from it.” Id. We
review this issue de novo. Id.
4 19-50097 In Napier, the district court stated during sentencing that additional
conditions would apply, but it did not specify what they were. See id. Under those
circumstances, we held that the “imposition of . . . mandatory and standard
conditions is deemed to be implicit in an oral sentence imposing supervised
release.” Id. at 1043. This is particularly true for mandatory conditions, which the
district court is required by law to impose. See 18 U.S.C § 3583(d) (listing
mandatory conditions that “[t]he court shall order, as an explicit condition of
supervised release”); United States v. Evans, 883 F.3d 1154, 1162 n.4 (9th Cir.
2018) (noting mandatory conditions “must be imposed on any defendant placed on
supervised release”). Thus, the mandatory conditions in Rosario-Montalvo’s case
do not conflict with the oral pronouncement of sentence, and they are affirmed.
“A condition of supervised release violates due process ‘if it either forbids or
requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application.’” Evans, 883
F.3d at 1160 (quoting United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004)).
We review de novo whether a condition of supervised release is unconstitutionally
vague. Id. at 1159-60. “A supervised release condition is substantively
unreasonable if it ‘is not reasonably related to the goal[s] of deterrence, protection
of the public, or rehabilitation of the offender,’ or if it infringes more on the
offender’s liberty than is ‘reasonably necessary’ to accomplish these statutory
5 19-50097 goals.” United States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (internal
citations omitted) (first quoting United States v. Collins, 684 F.3d 873, 892 (9th
Cir. 2012); then quoting 18 U.S.C. § 3583(d)(2)). We review for abuse of
discretion whether a condition is substantively unreasonable. United States v.
Watson, 582 F.3d 974, 981 (9th Cir. 2009).
As a general rule, standard conditions also are implicit in an oral sentence
imposing supervised release if the district court indicates that additional conditions
will be included in the written judgment. Napier, 463 F.3d at 1043. However,
they are not required and “are merely recommended to the extent that they serve
the purposes of sentencing.” Evans, 883 F.3d at 1162 n.4. Additionally, for a
deportable alien like Rosario-Montalvo, many standard conditions simply do not
make sense, for example, Standard Condition One prohibiting the defendant from
leaving the judicial district without permission, Standard Condition Two requiring
the defendant to report to the probation officer, and others. For this reason, the
Sentencing Guidelines provide that “[t]he court ordinarily should not impose a
term of supervised release in a case in which supervised release is not required by
statute and the defendant is a deportable alien who likely will be deported after
imprisonment.” U.S.S.G. § 5D1.1(c). But see United States v. Valdavinos-Torres,
704 F.3d 679, 692-93 (9th Cir. 2012) (holding that imposition of supervised release
on deportable alien was not substantively unreasonable where district court “gave a
6 19-50097 specific and particularized explanation that supervised release would provide an
added measure of deterrence and protection based on the facts of [defendant’s]
case”). While the district court sufficiently explained why it was imposing
supervised release, it failed to state which standard conditions would be imposed,
and whether the conditions would apply in Mexico where Rosario-Montalvo would
be deported, or only if Rosario-Montalvo reentered the United States. We vacate
the standard conditions imposed by the judgment, and remand for the district court
to determine upon resentencing which standard conditions apply and whether they
will apply outside of the United States. Cf. Napier, 463 F.3d at 1043-44 (vacating
and remanding where “we cannot say the inclusion of . . . conditions in the written
judgment created a direct conflict,” but “we do not have a complete and
unambiguous sentence to leave intact”).
The specific standard conditions to which Rosario-Montalvo objects were
taken from an obsolete form of judgment. Because, upon resentencing, the district
court will use a currently applicable form of judgment, with currently applicable
standard conditions, it is unnecessary for us to rule on Rosario-Montalvo’s
constitutional objections. We do note that Standard Conditions Four, Five, and
Thirteen, as recited in the outdated judgment form imposed by the district court,
have already been deemed unconstitutionally vague. Evans, 883 F.3d at 1162-64.
7 19-50097 AFFIRMED in part, VACATED in part, and REMANDED. The parties
shall bear their own costs.
8 19-50097