                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 01 2010

                                                                        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. 09-30304

               Plaintiff - Appellee,             D.C. No. 2:04-cr-06004-RHW

   v.

 CHRISTOPHER TODD SMITH,                         MEMORANDUM *

               Defendant - Appellant.



                     Appeal from the United States District Court
                       for the Eastern District of Washington
                     Robert H. Whaley, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Christopher Todd Smith appeals from the ten-month sentence imposed

following the second revocation of his supervised release. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm 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.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

JC/Research
        First, Smith contends the district court procedurally erred by failing to

consider the 18 U.S.C. § 3553(a) sentencing factors and provide an adequate

explanation for his sentence. The record belies this contention. See United States

v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc).

        Second, Smith contends the district court abused its discretion by imposing a

condition of supervised release that requires him to undergo a mental health

evaluation in the absence of evidence that he was mentally ill. The record supports

the district court’s conclusion that Smith may benefit from mental health

counseling. See United States v. Lopez, 258 F.3d 1053, 1056-57 (9th Cir. 2001).

        Finally, Smith contends that nonstandard Condition of Supervised Release

No. 14 should be stricken from the written judgment because it was not included in

the district court’s oral pronouncement. “In cases where there is a direct conflict

between an unambiguous oral pronouncement of sentence and the written

judgment and commitment, this court has uniformly held that the oral

pronouncement, as correctly reported, must control.” United States v. Hicks,

997 F.2d 594, 597 (9th Cir. 1993). Accordingly, we vacate this condition and

remand for the district court to make the written judgment consistent with the oral

pronouncement. See id.

        AFFIRMED in part; VACATED in part; REMANDED.


JC/Research                                 2                                       09-30304
