United States v. Ricardo Lara ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50053
Plaintiff-Appellee, D.C. No.
3:17-cr-02781-LAB-1
v.
RICARDO LARA, AKA Ricardo Lara- MEMORANDUM*
Gonzalez,
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 June 11, 2020
San Francisco, California
Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,** District Judge.
Ricardo Lara pleaded guilty to one count of importation of methamphetamine
in violation of 21 U.S.C. §§ 952 & 960 and was sentenced to twenty-four months in
prison to be followed by sixty months of supervised release. After his release from
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
prison, Lara violated several conditions of supervised release. At a hearing about
the violations, the district court expressly stated it was not revoking supervised
release. The court, however, also orally imposed a custodial sentence of almost
eleven months. Notwithstanding the oral pronouncement, a subsequent written
judgment stated that supervised release had been revoked. The written judgment
also recalculated the term of supervised release to remove credit for the time spent
on release before the violations.
On appeal, Lara asks that we direct the district court to modify the written
judgment to conform to the oral pronouncement, that his term of supervised release
be corrected to reflect credit for the time already spent on post-release supervision,
and that the custodial term be vacated. We have jurisdiction under 28 U.S.C. § 1291.
We vacate and remand.
1. If an unambiguous oral pronouncement of a sentence directly conflicts
with a written judgment, the former controls. United States v. Munoz-Dela Rosa,
495 F.2d 253, 256 (9th Cir. 1974) (per curiam). The parties agree that the oral
pronouncement unambiguously provided that supervised release was not revoked,
but the written judgment said that it had been. We therefore remand for the district
court to modify the written judgment to conform to the oral pronouncement. See
United States v. Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015).
2. Because the district court did not revoke supervised release, it should
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not have recalculated the remaining term of supervised release to remove credit for
time already spent on release. See 18 U.S.C. § 3583(e)(3). We therefore instruct the
district court on remand to correct its judgment to accurately reflect the remaining
term of supervised release.
3. The district court plainly erred in imposing a custodial sentence as a
condition of supervised release. See 18 U.S.C. § 3583(d), (e)(2). The purpose of
supervised release is “to assist individuals in their transition to community life” and
it therefore “fulfills rehabilitative ends, distinct from those served by incarceration.”
United States v. Johnson, 529 U.S. 53, 59 (2000). Hence, we have made clear that
“conditions of supervised release may not involve punishment or incarceration.”1
United States v. Bahe, 201 F.3d 1124, 1130–31 (9th Cir. 2000). We therefore vacate
the custodial sentence.
VACATED AND REMANDED with instructions. The mandate shall issue
forthwith.
1
Although 18 U.S.C. § 3563(b)(10) allows a district court, without revoking
supervised release, to remand a defendant to the “custody of the Bureau of Prisons,
during nights, weekends, or other intervals of time, totaling no more than the lesser
of one year or the term of imprisonment authorized for the offense, during the first
year of the term of . . . supervised release,” the district court did not invoke this
provision. Moreover, the custodial term imposed extends beyond the first year of
supervised release.
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