                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JUN 14 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                        No. 15-50563

              Plaintiff-Appellee,                D.C. No.
                                                 3:13-cr-04514-BEN-9
 v.

RACHEL RUVALCABA-MORALES,                        MEMORANDUM*
aka Rachel Morales, aka Rachel
Ruvalcaba,

              Defendant-Appellant.


                    Appeal from the United States District Court
                      for the Southern District of California
                    Roger T. Benitez, District Judge, Presiding

                             Submitted June 6, 2017**
                               Pasadena, California

Before: GRABER, SACK,*** and MURGUIA, Circuit Judges.




      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
        The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Robert D. Sack, United States Circuit Judge for the Court
of Appeals for the Second Circuit, sitting by designation.
       Defendant Rachel Ruvalcaba-Morales pleaded guilty to one RICO count and

one count of conspiracy to distribute controlled substances. She appeals her

below-Guidelines sentence, the fine imposed, and a condition of supervised

release. Because the issues raised on appeal were not presented to the district

court, we review for plain error. United States v. Herrera-Rivera, 832 F.3d 1166,

1172 (9th Cir. 2016); United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir.

2006); Fed. R. Crim. P. 52(b).

       1. The district court did not plainly err by applying a two-level sentencing

enhancement for importation of methamphetamine. Any error did not affect the

outcome of the sentencing proceeding, Puckett v. United States, 556 U.S. 129, 135

(2009), because the court made clear that it based the selected sentence on factors

independent of the Guidelines, Molina-Martinez v. United States, 136 S. Ct. 1338,

1346 (2016).

       2. The district court did not plainly err in addressing Defendant’s mitigation

arguments at sentencing. Indeed, because the court listened to and addressed on

the record the mitigation arguments that Defendant made, the court did not err at

all.

       3. The district court did not plainly err in imposing a $1,000 fine. From the

court’s explanation at sentencing, it is clear that the court considered the


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Guidelines, the 18 U.S.C. § 3553(a) factors, and the fine-specific factors set forth

in 18 U.S.C. § 3572(a). See United States v. Orlando, 553 F.3d 1235, 1239 (9th

Cir. 2009) (noting requirement to consider all three sets of factors). And the court

explained its decision sufficiently to allow for meaningful appellate review. Id.

The reasons that the court gave were permissible, and the court did not have to list

every factor. United States v. Hurtado, 760 F.3d 1065, 1069 (9th Cir. 2014).

      4. Finally, the parties, and we, agree that one condition of supervised release

is impermissibly vague and overbroad. The condition is that Defendant "shall not

associate with any member, prospect, or associate of the Mexican Mafia gang or

any other gang or club with a history of criminal activity." Two aspects of that

condition are problematic under our precedents, United States v. Soltero, 510 F.3d

858 (9th Cir. 2007) (per curiam), and United States v. Johnson, 626 F.3d 1085 (9th

Cir. 2010). The terms "club with a history of criminal activity" and "associat[ing]

with any . . . prospect, or associate of the Mexican Mafia gang or any other gang or

club with a history of criminal activity" do not adequately instruct the average

person as to what is forbidden. (Emphasis added.) We therefore vacate this

condition with instructions to enter a modified condition that Defendant "shall not

associate with any known member of the Mexican Mafia gang or any other gang

with a history of criminal activity."


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      AFFIRMED in part; VACATED and REMANDED in part, with

instructions.




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