United States v. Otis Mixon

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 14 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50192

Plaintiff-Appellee, D.C. No. 5:17-cr-00203-ODW-1

v. MEMORANDUM* OTIS JAMES MIXON, AKA James Otis Mixon, AKA Otis James Mixon, Jr.,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Otis D. Wright II, District Judge, Presiding

Submitted June 11, 2019**

Before: CANBY, GRABER, and MURGUIA, Circuit Judges.

Otis James Mixon appeals from the district court’s judgment and challenges

the 42-month sentence and three conditions of supervised release imposed

following his guilty-plea conviction for bank robbery, in violation of 18 U.S.C.

§ 2113(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and

* 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 and remand in part.

Mixon contends that the district court procedurally erred by failing to

address his non-frivolous arguments in support of a lesser sentence. 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 record reflects that the district court

considered Mixon’s arguments and explained its reasons for imposing the below-

Guidelines sentence, including the nature of the offense and Mixon’s criminal

history. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc);

see also United States v. Perez-Perez, 512 F.3d 514, 516 (9th Cir. 2008)

(sentencing judge need not expressly address every sentencing argument). Mixon

also contends that his sentence is substantively unreasonable. The district court did

not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The

sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing

factors and the totality of the circumstances. See Gall, 552 U.S. at 51.

Lastly, Mixon challenges standard supervised release conditions five, six,

and fourteen in the written judgment. The government concedes, and we agree,

that these conditions are unconstitutionally vague. See United States v. Evans, 883

F.3d 1154, 1162-64 (9th Cir.), cert. denied, 139 S. Ct. 133 (2018). We therefore

remand for the district court to modify conditions five, six, and fourteen consistent

with our opinion in Evans.

2 18-50192 Mixon’s unopposed motion to file the opening brief under seal, and the

government’s unopposed motion to file the answering brief under seal, are granted.

The Clerk will maintain Docket Entry Nos. 9 and 17 under seal.

AFFIRMED in part; VACATED and REMANDED in part.

3 18-50192