                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           NOV 03 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14–10405

              Plaintiff - Appellee,              D.C. 4:09-cr-00386-RCC-DTF-1

  v.                                             MEMORANDUM*

CHRISTOPHER BRYAN GARCIA,

              Defendants - Appellant.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Raner C. Collins, Chief District Judge, Presiding

                     Argued and Submitted October 20, 2016
                            San Francisco, California

Before: CALLAHAN and HURWITZ, Circuit Judges, and MOLLOY,** District
Judge.

       On November 28, 2008, Garcia sexually assaulted his five-year-old nephew.

A grand jury later returned an indictment charging Garcia with two counts of

aggravated sexual abuse. After unsuccessfully asking the government to offer a

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Donald W. Molloy, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.
plea agreement charging him with a crime not subject to a thirty-year mandatory

minimum sentence, Garcia was found guilty by a jury of both counts of the

indictment.

      At sentencing, the district court applied a sentencing enhancement for an

alleged pattern of engaging in prohibited sexual conduct, and imposed two

concurrent 480 month terms. On appeal, we affirmed Garcia’s convictions but

vacated the sentences and remanded for resentencing, finding insufficient evidence

to support the enhancement. United States v. Garcia, 500 F. App’x 653 (9th Cir.

2012). On remand, the district court resentenced Garcia to concurrent terms of 360

months in prison, placed him on lifetime supervised release, and imposed a $200

special assessment and $5,000 in restitution.

      Garcia timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm in part, vacate in part, and remand to the district court for the limited

purpose of conforming the supervised release conditions in the judgment to the

oral pronouncement of sentence.

      1. The thirty-year mandatory minimum sentence required by § 2241(c)

does not conflict with 18 U.S.C. § 3553(a). Although “a district court must

consider the § 3553(a) factors in all cases,” § 3553(a) does not authorize “a district

court to impose a sentence below a mandatory statutory minimum,” absent other


                                           2
specific statutory authority. United States v. Wipf, 620 F.3d 1168, 1169–71 (9th

Cir. 2010). Nor does an unwarranted sentencing disparity exist merely because

seemingly similarly-situated defendants received lesser sentences as a result of plea

deals. United States v. Treadwell, 593 F.3d 990, 1011–12 (9th Cir. 2010).

      2. The § 2241(c) mandatory minimum sentence does not violate the Eighth

Amendment as applied to Garcia. Because sexual crimes involving children cause

grave harm, United States v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007) (per

curiam), Garcia’s sentence is “proportionate to the crime for which [he] has been

convicted,” Solem v. Helm, 463 U.S. 277, 290 (1983). The sentence is not cruel

and unusual “simply because it is ‘mandatory.’” Harmelin v. Michigan, 501 U.S.

957, 995–96 (1991).

      3. Garcia’s constitutional rights were not violated because the government

refused to offer him a plea agreement providing for a lesser sentence. Under the

doctrine of separation of powers, a court generally lacks the power to tell a

prosecutor what charges to bring, In re Ellis, 356 F.3d 1198, 1209–10 (9th Cir.

2004), or to interfere “with a prosecutor’s discretion regarding . . . whether to

engage in plea negotiations,” United States v. Banuelos-Rodriguez, 215 F.3d 969,

976 (9th Cir. 2000) (en banc). This case does not present “proof of discrimination

based on suspect characteristics” which might give a court jurisdiction to review


                                           3
the prosecutor’s charging decision. Banuelos-Rodriguez, 215 F.3d at 977 (quoting

United States v. Oakes, 11 F.3d 897, 899 (9th Cir. 1993)).

      4. Nor does the mandatory minimum sentence under § 2241(c) violate

separation of powers. United States v. Major, 676 F.3d 803, 811 (9th Cir. 2012).

“Congress has the power to define criminal punishments without giving the courts

any sentencing discretion.” Chapman v. United States, 500 U.S. 453, 467 (1991).

      5. However, the written judgment directly conflicted with the unambiguous

oral pronouncement of sentence. United States v. Munoz-Dela Rosa, 495 F.2d 253,

256 (9th Cir. 1974). The district court’s oral pronouncement unambiguously

adopted the supervised release conditions of the presentence report. The written

judgment conflicts with several conditions in the presentence report: (1) special

condition number six in the presentence report conflicts with special condition

number five in the written judgment; (2) special condition number nine in the

presentence report conflicts with special condition number eight in the written

judgment; and (3) special condition number 10 in the presentence report conflicts

with special condition number nine in the written judgment. Because the oral

pronouncement controls, Munoz-Dela Rosa, 495 F.2d at 256, we vacate the

sentence and remand to the district court with instructions to amend the written

judgment to conform with the oral pronouncement of sentence.


                                         4
AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




                           5
