United States v. Alexandro Virgen ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 25 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50153
Plaintiff-Appellee, D.C. No. 3:10-cr-04905-JAH-1
v.
MEMORANDUM*
ALEXANDRO JAVIER VIRGEN,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted March 16, 2021**
Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.
Alexandro Javier Virgen appeals from the district court’s judgment and
challenges four conditions of supervised release imposed on revocation of his
supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm
but remand to correct the judgment.
*
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).
Virgen challenges the special condition of supervised release that requires
him to submit to warrantless searches “with or without reasonable suspicion.” He
argues that the condition involves a greater deprivation of liberty than is
reasonably necessary because it does not expressly forbid arbitrary, capricious, or
harassing searches. Contrary to Virgen’s contention, this condition need not be
more narrowly tailored to be permissible. See United States v. Cervantes, 859 F.3d
1175, 1184 (9th Cir. 2017) (district courts have discretion to impose suspicionless
search condition). The record reflects that the district court imposed the condition
in light of Virgen’s extensive criminal history and poor performance on
supervision. This was not an abuse of discretion. See id. (upholding suspicionless
search condition where defendant had a significant criminal history and poor
performance on supervised release).
The parties agree, and the record reflects, that the written judgment conflicts
with the oral pronouncement of special conditions of supervised release 1, 3 and 9.
We, therefore, remand to the district court to enter a corrected written judgment
consistent with the court’s oral pronouncement of sentence. See United States v.
Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015) (remand for correction of the
written judgment is warranted when it conflicts with the oral pronouncement of
sentence because the oral pronouncement controls). Specifically, the district court
is directed to strike the phrase “and comply with both United States and Mexican
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immigration law requirements” from special condition 1, and the phrase “[a]llow
for reciprocal release of information between the probation officer and the
treatment provider” from special conditions 3 and 9.
AFFIRMED; REMANDED to correct the judgment.
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