United States v. Gerardo Montufar-Ramirez ( 2019 )

FILED
NOT FOR PUBLICATION
OCT 08 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50086
Plaintiff-Appellee, D.C. No. 2:17-cr-00556-PA-1
v.
MEMORANDUM*
GERARDO MONTUFAR-RAMIREZ,
AKA Gerardo Edwin Estrada, AKA
Ramirez Edwin Gerardo, AKA Gerardo
Perolino Ramirez, AKA Gerardo Petrolino
Montufar, AKA Gerardo Petrolino
Ramirez, AKA Gerardo Petronilo
Montufar, AKA Smokey,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted April 9, 2019**
Pasadena, California
*
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).
Before: RAWLINSON and MURGUIA, Circuit Judges, and RAKOFF,*** District
Judge.
Defendant-appellant Gerardo Montufar-Ramirez (Montufar) appeals the
sentence imposed following his guilty plea for unlawfully reentering the United
States following deportation, in violation of 8 U.S.C. § 1326(a).
As Montufar did not object to or challenge the district court’s inclusion of
the additional criminal history point, we review for plain error. See United States
v. Beecroft, 825 F.3d 991, 995 (9th Cir. 2016). Plain error arises when “(1) there is
an error; (2) the error is clear or obvious, rather than subject to reasonable dispute;
(3) the error affected the appellant’s substantial rights; and (4) the error seriously
affects the fairness, integrity or public reputation of judicial proceedings.” Id.
(citation and alterations omitted).
The district court did not plainly err when it imposed one criminal history
point with respect to Montufar’s conviction and probationary sentence for driving
with a suspended license, despite the fact that he had only served nine months of
the probationary term––a shorter period than the one-year threshold set forth in the
United States Sentencing Guidelines (Guidelines). See U.S.S.G. § 4A1.2(c)(1)
(stating that certain misdemeanors, such as driving without a license or with a
***
The Honorable Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
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revoked or suspended license, are counted towards a defendant’s criminal history
“only if (A) the sentence was a term of probation of more than one year or a term
of imprisonment of at least thirty days”) (emphasis added).
Montufar’s probationary sentence was revoked and terminated only because
the subsequent offense he committed, sexual assault on a child, was incredibly
serious and resulted in a sentence of seven years’ imprisonment. This
circumstance is distinguishable from the facts in United States v. Mejia, 559 F.3d
1113, 1115-16 (9th Cir. 2009), where the defendant’s two-year probationary
sentence was terminated (not revoked) only a few days into the term, and the
underlying crime was “not regarded as serious.”
Montufar also contends, and the government concedes, that we should
remand to allow the district court to correct its judgment, which provides that
Montufar is guilty of 8 U.S.C. § 1326(b), in addition to 8 U.S.C. § 1326(a). See
United States v. Garcia-Cardenas, 555 F.3d 1049, 1051 (9th Cir. 2009)
(remanding to strike the reference to § 1326(b)).
Finally, Montufar asserts, and the government agrees, that the district court
plainly erred in imposing standard supervised release conditions five (family
obligations), six (work obligations), and fourteen (notice to third-parties
obligations). Our decision in United States v. Evans, 883 F.3d 1154, 1162-64 (9th
3
Cir. 2018), held that these conditions are unconstitutionally vague. Accordingly,
we affirm Montufar’s sentence, but remand to the district court (1) to strike the
reference to 8 U.S.C. § 1326(b) from Montufar’s judgment, and (2) to modify
supervised release conditions five, six, and fourteen, consistent with Evans.
Each party shall bear its costs on appeal.
AFFIRMED in part; REMANDED in part.
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