                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 09 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 11-50440

              Plaintiff - Appellee,               D.C. No. 2:10-cr-01352-RGK-1

  v.
                                                  MEMORANDUM *
TIMOTHY MARTIN GONZALEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                       Argued and Submitted August 6, 2012
                               Pasadena, California

Before: REINHARDT, SILVERMAN, and NGUYEN, Circuit Judges.

       Timothy Martin Gonzalez pleaded guilty to two counts of possessing and

uttering counterfeit or forged securities, in violation of 18 U.S.C. § 513(a). We

affirm in part, reverse in part, vacate in part, and remand.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Gonzalez argues that the district court erred in failing to grant his motion for

a downward departure in his criminal history category pursuant to United States

Sentencing Guidelines (“U.S.S.G.”) § 4A1.3. We review the denial of a motion for

a downward departure “to the extent that the denial implicates the overall

reasonableness of [the] sentence.” United States v. Dallman, 533 F.3d 755, 761

(9th Cir. 2008); see also United States v. Ellis, 641 F.3d 411, 421 (9th Cir. 2011).

We affirm the 18-month sentence imposed, which was at the lower end of the

guidelines range of 18-24 months, because “the record as a whole reflects rational

and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).”

United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012) (en banc) (internal

quotation marks and citation omitted). Moreover, although the district court

misstated one fact regarding his prior criminal history, that error was harmless as it

did not affect the ultimate conclusion that Gonzalez had a serious criminal history

and that his criminal behavior had continued to escalate, both in the seriousness of

the offenses and the punishments imposed. See United States v. Cruz-Gramajo,

570 F.3d 1162, 1167 (9th Cir. 2009) (“Remand is not necessary if the reviewing

court concludes, on the record as a whole, that the error was harmless, i.e., that the

error did not affect the district court’s selection of the sentence imposed.”) (internal

quotation marks and citations omitted).


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      At the urging of both parties, we reverse imposition of sweat-patch testing as

part of the conditions of supervised release, which the district court declined to

impose during the oral pronouncement of the sentence but included in the written

judgment, and remand to the district court to strike that portion of the judgment.

“Where a discrepancy arises between the terms of an oral pronouncement of a

sentence and the subsequent written judgment, the terms of the oral pronouncement

control.” United States v. Orlando, 553 F.3d 1235, 1240 (9th Cir. 2009).

      We also reverse the delegation to the probation officer in the restitution

order to lower the amount of the restitution payments that Gonzalez must make

while on supervised release. Both parties agree that under the Mandatory Victims

Restitution Act (“MVRA”), “the district court simply does not have the authority

to delegate its own scheduling duties—not to the probation office, not to the BOP,

not to anyone else.” United States v. Gunning, 401 F.3d 1145, 1150 (9th Cir.

2005). Moreover, the MVRA “specifically provides that ‘the court’ makes the

decision on changes in terms because of changes in the defendant's financial

circumstances.” United States v. Betts, 511 F.3d 872, 877 (9th Cir. 2007). Thus,

delegating to the probation officer the authority to lower the amount of the

restitution payments was improper. In light of this improper delegation, it is

unclear whether the district court set the restitution payment schedule requiring


                                           3
Gonzalez to pay $250 per month in consideration of his financial circumstances, on

the basis required by the MVRA. See 18 U.S.C. § 3664(f)(2); Ward v. Chavez, 678

F.3d 1042, 1050 (9th Cir. 2012). Contrary to what the government contends, the

record does not unambiguously support the conclusion that Gonzalez, an indigent

defendant with no significant work history who is supported by his mother, will be

able to make the $250 per month payments. In fact, the record suggests that the

district court recognized that the $250 monthly payments may have been too high

in that it delegated, albeit improperly, the authority to the probation officer to

lower that amount. We thus vacate the portion of the restitution order regarding the

$250 monthly payments and remand to the district court to set a schedule for

Gonzalez to pay restitution in consideration of his financial circumstances.

      AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART;

AND REMANDED.




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