United States v. Rojo-German

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 8, 2024
• Docket: 23-289
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 8 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-289 D.C. No. Plaintiff-Appellee, 4:21-cr-01597-RM-LCK-1 v. MEMORANDUM* EFREN ALEXIS ROJO-GERMAN,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding

Submitted August 15, 2024** Submission Vacated August 15, 2024 Resubmitted October 8, 2024 San Francisco, California

Before: GRABER, CALLAHAN, and KOH, Circuit Judges.

Efren Alexis Rojo-German appeals his sentence on the ground that his due

process rights were violated when the district court failed to pronounce certain

* 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). discretionary conditions of supervised release in his presence. We have

jurisdiction under 28 U.S.C. § 1291. Because Rojo-German was informed of the

proposed conditions of supervised release in advance of sentencing and the district

court incorporated those conditions by reference at the sentencing hearing, we

affirm.

A defendant has a constitutional right “to be present at any stage of the

criminal proceeding that is critical to its outcome if his presence would contribute

to the fairness of the procedure,” one of which is sentencing. United States v.

Montoya, 82 F.4th 640, 646–47 (9th Cir. 2023) (en banc) (citations omitted).

Accordingly, a defendant has “a due process right to be present to defend against”

any non-mandatory conditions of supervised release, even those labeled “standard”

under the U.S. Sentencing Guidelines. Id. at 650.

A district court may satisfy this requirement by reciting “each condition it

elects to impose” at sentencing or, where the defendant has been informed of the

proposed conditions of supervised release in advance, the court may “incorporate

those conditions by reference at the hearing.” Id. at 651–52. For example, the

district court may orally incorporate by reference the “conditions set forth in the

presentence report,” or “courtwide or judge-specific standing orders that list

conditions.” Id. at 652 (quoting United States v. Diggles, 957 F.3d 551, 561 (5th

Cir. 2020) (en banc)).

2 Rojo-German’s presentence report recommended that he be required to

comply with “the mandatory and standard conditions of supervision as adopted by

this Court in General Order 17-18” and listed several (but not all) of those

conditions that were of “particular importance.” At sentencing, Rojo-German

affirmed that he had reviewed the presentence report and that his attorney had

answered his questions regarding the report. His attorney additionally represented

that Rojo-German understood the contents of the presentence report. The district

court orally pronounced that Rojo-German must “follow the standard conditions of

supervision adopted by this Court in General Order 17-18.”

In United States v. Avendano-Soto, No. 23-281, 2024 WL 4157760 (9th Cir.

Sept. 12, 2024), which concerned a sentencing materially indistinguishable from

Rojo-German’s, we held that the district court validly incorporated by reference

the conditions of supervised release in General Order 17-18. We concluded:

“Because Avendano reviewed and understood the PSR, and the PSR incorporated

the conditions of General Order 17-18, Avendano had sufficient notice that he

would be subject to the conditions in General Order 17-18.” Id., 2024 WL

4157760, at *4.

The same is true of Rojo-German. He was sufficiently “informed of the

proposed conditions of supervised release set forth in the presentence report” and

thus in General Order 17-18, such that the district court’s oral incorporation by

3 reference of those same conditions gave Rojo-German “a meaningful opportunity

to object to them.” Montoya, 82 F.4th at 652.

AFFIRMED.