United States v. Alex Gomez ( 2020 )

FILED
NOT FOR PUBLICATION
MAY 7 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50213
Plaintiff-Appellee, D.C. No.
06-CR-1243-007-DMS
v.
ALEX GOMEZ, MEMORANDUM*
Defendant-Appellant,
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted May 5, 2020**
Pasadena, California
Before: GOULD and CHRISTEN, Circuit Judges, and HELLERSTEIN,*** District
Judge.
*
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).
***
The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
Defendant-Appellant Alex Gomez was sentenced to a term of imprisonment
and supervised release in 2008. While serving the term of supervised release, he
was arrested in connection with a domestic violence incident. The district court
found him guilty of a violation of supervised release, revoked his supervised
release, and imposed a sentence of twelve months and one day in prison followed
by two years of supervised release. On appeal, Gomez challenges certain
conditions of his new term of supervised release. We have jurisdiction under 28
U.S.C. § 1291.
During the oral pronouncement of sentence, the district court stated that it
was imposing “all of the same terms and conditions” from Gomez’s prior term of
supervised release. In the written judgment that followed, two conditions had
additional material terms. A condition prohibiting Gomez from going to Mexico
had the added requirement that he “comply with both United States and Mexican
immigration law requirements.” A condition regarding mental health treatment
had an added requirement that Gomez “[a]llow for reciprocal release of
information between the probation officer and the treatment provider.”
“The actual imposition of a sentence occurs at the oral sentencing, not when
the written judgment later issues. Thus, it has long been the rule that, when an oral
sentence is unambiguous, it controls over a written sentence that differs from it.”
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United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006). We review this
question de novo. Id. As the Government concedes, the written judgment
conflicted with the oral sentence because instead of including “all of the same
terms and conditions” as those in the 2008 judgment, it added terms to two
conditions. Therefore, we strike the terms requiring that Gomez “comply with
both United States and Mexican immigration law requirements” and “[a]llow for
reciprocal release of information between the probation officer and the treatment
provider.” See United States v. Hall, 912 F.3d 1224, 1226 (9th Cir. 2019) (per
curiam) (striking improper term from condition of supervised release).
At the sentencing, the district court announced that it was imposing two
completely new conditions that had been recommended in a petition by Gomez’s
probation officer. Defense counsel failed to object. Gomez challenges as
unconstitutionally vague the portion of one condition requiring that he “not be
present in (or frequent) places where alcohol is the main item of sale.” “A
condition of supervised release violates due process ‘if it either forbids or requires
the doing of an act in terms so vague that men of common intelligence must
necessarily guess at its meaning and differ as to its application.’” United States v.
Evans, 883 F.3d 1154, 1160 (9th Cir. 2018) (quoting United States v. Hugs, 384
F.3d 762, 768 (9th Cir. 2004)). Because the defense failed to object to this
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condition at sentencing, we review for plain error. United States v.
Rodriguez-Rodriguez, 441 F.3d 767, 772 (9th Cir. 2006). “Plain error is ‘(1) error,
(2) that is plain, and (3) that affects substantial rights.’” United States v. Ameline,
409 F.3d 1073, 1078 (9th Cir. 2005) (quoting United States v. Cotton, 535 U.S.
625, 631 (2002)). If these conditions are met, we may correct “a forfeited error
that (4) ‘seriously affects the fairness, integrity, or public reputation of judicial
proceedings.’” Id. (quoting Cotton, 535 U.S. at 631).
The district court did not commit plain error in imposing the condition
prohibiting Gomez from “be[ing] present in (or frequent[ing]) places where
alcohol is the main item of sale.” The condition does suffer from potential
ambiguity or issues with enforcement. For example, it may be difficult to
determine whether alcohol is the “main item of sale” at a restaurant with a
substantial menu of both food and alcohol. Nonetheless, we cannot say that
imposition of the condition constitutes plain error. No controlling precedent
establishes that the condition, which multiple district courts have imposed over the
years, is unconstitutionally vague. See United States v. McIntee, 742 F. App’x
198, 200 (9th Cir. 2018) (deciding challenge to a different portion of a condition
that also prohibited “enter[ing] establishments where alcohol is the primary item of
sale”). The purported vagueness is not “so clear-cut, so obvious, a competent
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district judge should be able to avoid it without benefit of objection.” United
States v. Matus-Zayas, 655 F.3d 1092, 1098 (9th Cir. 2011) (quoting United States
v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007)).
AFFIRMED in part and REVERSED in part. The parties shall bear their
own costs.
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