United States v. Abelard Fuentes-Castro ( 2020 )

FILED
NOT FOR PUBLICATION
JUN 15 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50111
Plaintiff-Appellee, D.C. No.
3:18-cr-05142-LAB-1
v.
ABELARD FUENTES-CASTRO, MEMORANDUM*
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 Abelard Fuentes-Castro challenges the district court’s
imposition of standard conditions of supervised release in the written judgment
entered after his conviction for attempted reentry after removal. We have
*
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.
jurisdiction under 28 U.S.C. § 1291, and we vacate the standard conditions of
supervised release and remand.1
We review de novo whether the oral pronouncement of a sentence conflicts
with the written judgment. United States v. Napier, 463 F.3d 1040, 1042 (9th Cir.
2006).
The district court stated at sentencing that it was imposing a term of
supervised release to deter Fuentes-Castro from unlawfully reentering the United
States. Although the Sentencing Guidelines state that courts “ordinarily should not
impose” a supervised-release term if the defendant “likely will be deported after
imprisonment,” U.S.S.G. § 5D1.1(c), a supervised-release term may be
substantively reasonable where the district court “gave a specific and particularized
explanation that [it] would provide an added measure of deterrence,” United States
v. Valdavinos-Torres, 704 F.3d 679, 693 (9th Cir. 2012). The transcript shows the
district court was clearly concerned with deterring Fuentes-Castro from reentering
the country.
It may be that the district court intended the conditions of supervised release
to only apply if Fuentes-Castro reentered the United States, consistent with the
1
Because the parties are familiar with the facts and procedural history of
this case, we do not recite them here.
2
presentence report recommendation to impose supervised release with the qualifier
that “supervision [is] waived upon deportation, exclusion, or voluntary departure.”
But the written judgment did not explain that Fuentes-Castro is subject to the
standard conditions only if he reenters the United States, and at least some of the
standard conditions are inconsistent with Fuentes-Castro residing outside of the
country.
We vacate the standard conditions imposed by the judgment, and remand for
the district court to determine upon resentencing which standard conditions apply,
and when, 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”).
In light of this disposition, we need not reach Fuentes-Castro’s constitutional
challenges to the standard conditions.
VACATED and REMANDED, with the parties to bear their own costs.
3