                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         JUN 8 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-50097

                Plaintiff-Appellee,             D.C. No.
                                                3:18-cr-04862-LAB-1
 v.

JOSE ROSARIO-MONTALVO, AKA Jose                 MEMORANDUM*
Montalvo-Rosario,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Southern District of California
                  Larry A. Burns, Chief District Judge, Presiding

                        Argued and Submitted May 5, 2020
                              Pasadena, California

Before: GOULD and CHRISTEN, Circuit Judges, and HELLERSTEIN,** District
Judge.

      Defendant-Appellant Jose Rosario-Montalvo appeals his sentence of 41

months of imprisonment and three years of supervised release for the felony of

illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
court explained that the sentence was necessary to deter Rosario-Montalvo, who

had three immigration-related convictions, had been deported eight times, and was

not deterred sufficiently by a prior 37-month sentence for the same type of crime.

Rosario-Montalvo argues that the custodial sentence is substantively and

procedurally unreasonable due to the court’s reliance on a misunderstanding of

fact; that the imposition of mandatory and standard conditions of supervised

release in the written judgment conflicted with the oral pronouncement of

sentence, which did not mention mandatory or standard conditions; and that certain

of the standard conditions of supervised release are substantively unreasonable,

unconstitutionally vague, or both.

      In determining Rosario-Montalvo’s sentence, the district court applied a

one-level fast track departure instead of the Government’s recommended two-level

departure, thereby raising the Guidelines range of custodial punishment. Rosario-

Montalvo argues the sentence is substantively and procedurally unreasonable

because the district court misunderstood Rosario-Montalvo’s history of fast-track

dispositions for prior convictions. We review the substantive reasonableness of the

sentence for abuse of discretion. United States v. Ressam, 679 F.3d 1069, 1086

(9th Cir. 2012). Because defense counsel failed to object to the alleged procedural

error at sentencing, we review it for plain error. United States v. Rangel, 697 F.3d

795, 800 (9th Cir. 2012).


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      An erroneous finding of fact can give rise to a sentence that is substantively

or procedurally unreasonable. Ressam, 679 F.3d at 1086; United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc). Early in the sentencing hearing, there

was confusion in an exchange between the district court and the prosecutor about

whether Rosario-Montalvo had received a fast-track disposition in the past. They

were essentially talking past each other, with the district court referring to a 2010

conviction where Rosario-Montalvo received fast-track treatment, while the

prosecutor was referring to a 2011 conviction where Rosario-Montalvo did not

receive fast-track treatment. Nonetheless, before imposing the sentence, the

district court resolved the confusion and correctly recited Rosario-Montalvo’s

history with respect to fast-track treatment. Therefore, the district court did not

rely on an erroneous finding of fact, and the sentence was reasonable in relation to

Rosario-Montalvo’s prior history of illegal entries into the United States. The

custodial sentence of 41 months is affirmed.

      Rosario-Montalvo also argues that all but two conditions of supervised

release must be vacated. At the sentencing, the district court announced two

conditions of supervised release: a special condition prohibiting Rosario-Montalvo

from reentering the United States and a mandatory condition prohibiting Rosario-

Montalvo from violating the law. The court did not refer to any other conditions.

The written judgment that followed included these two conditions, along with


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mandatory and standard conditions. Compounding the issue, the district court used

an outdated judgment form that included standard conditions that are no longer

recommended. Furthermore, the written judgment did not note whether Rosario-

Montalvo, who will likely be deported following his custodial sentence, will be

free of supervision while outside the United States.

      Rosario-Montalvo argues that all but the two conditions announced at

sentencing must be vacated because they conflict with the oral pronouncement;

that Standard Conditions Four, Five, Seven, and Thirteen also should be vacated

because they are unconstitutionally vague; that Standard Conditions One, Two,

Six, Eight, Nine, Ten, Eleven, and Twelve should be vacated because they are

substantively unreasonable, since Rosario-Montalvo will be deported to Mexico;

and that Standard Condition Three is both unconstitutionally vague and

substantively unreasonable.

      Because a defendant has a right under the Sixth Amendment and Federal

Rule of Criminal Procedure 43(a)(3) to be present at his sentencing, “[t]he actual

imposition of a sentence occurs at the oral sentencing, not when the written

judgment later issues.” United States v. Napier, 463 F.3d 1040, 1042 (9th Cir.

2006). As a result, “it has long been the rule that, when an oral sentence is

unambiguous, it controls over a written sentence that differs from it.” Id. We

review this issue de novo. Id.


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      In Napier, the district court stated during sentencing that additional

conditions would apply, but it did not specify what they were. See id. Under those

circumstances, we held that the “imposition of . . . mandatory and standard

conditions is deemed to be implicit in an oral sentence imposing supervised

release.” Id. at 1043. This is particularly true for mandatory conditions, which the

district court is required by law to impose. See 18 U.S.C § 3583(d) (listing

mandatory conditions that “[t]he court shall order, as an explicit condition of

supervised release”); United States v. Evans, 883 F.3d 1154, 1162 n.4 (9th Cir.

2018) (noting mandatory conditions “must be imposed on any defendant placed on

supervised release”). Thus, the mandatory conditions in Rosario-Montalvo’s case

do not conflict with the oral pronouncement of sentence, and they are affirmed.

      “A condition of supervised release violates due process ‘if it either forbids or

requires the doing of an act in terms so vague that men of common intelligence

must necessarily guess at its meaning and differ as to its application.’” Evans, 883

F.3d at 1160 (quoting United States v. Hugs, 384 F.3d 762, 768 (9th Cir. 2004)).

We review de novo whether a condition of supervised release is unconstitutionally

vague. Id. at 1159-60. “A supervised release condition is substantively

unreasonable if it ‘is not reasonably related to the goal[s] of deterrence, protection

of the public, or rehabilitation of the offender,’ or if it infringes more on the

offender’s liberty than is ‘reasonably necessary’ to accomplish these statutory


                                           5                                        19-50097
goals.” United States v. Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (internal

citations omitted) (first quoting United States v. Collins, 684 F.3d 873, 892 (9th

Cir. 2012); then quoting 18 U.S.C. § 3583(d)(2)). We review for abuse of

discretion whether a condition is substantively unreasonable. United States v.

Watson, 582 F.3d 974, 981 (9th Cir. 2009).

      As a general rule, standard conditions also are implicit in an oral sentence

imposing supervised release if the district court indicates that additional conditions

will be included in the written judgment. Napier, 463 F.3d at 1043. However,

they are not required and “are merely recommended to the extent that they serve

the purposes of sentencing.” Evans, 883 F.3d at 1162 n.4. Additionally, for a

deportable alien like Rosario-Montalvo, many standard conditions simply do not

make sense, for example, Standard Condition One prohibiting the defendant from

leaving the judicial district without permission, Standard Condition Two requiring

the defendant to report to the probation officer, and others. For this reason, the

Sentencing Guidelines provide that “[t]he court ordinarily should not impose a

term of supervised release in a case in which supervised release is not required by

statute and the defendant is a deportable alien who likely will be deported after

imprisonment.” U.S.S.G. § 5D1.1(c). But see United States v. Valdavinos-Torres,

704 F.3d 679, 692-93 (9th Cir. 2012) (holding that imposition of supervised release

on deportable alien was not substantively unreasonable where district court “gave a


                                          6                                    19-50097
specific and particularized explanation that supervised release would provide an

added measure of deterrence and protection based on the facts of [defendant’s]

case”). While the district court sufficiently explained why it was imposing

supervised release, it failed to state which standard conditions would be imposed,

and whether the conditions would apply in Mexico where Rosario-Montalvo would

be deported, or only if Rosario-Montalvo reentered the United States. We vacate

the standard conditions imposed by the judgment, and remand for the district court

to determine upon resentencing which standard conditions apply and whether they

will apply outside of the United States. Cf. Napier, 463 F.3d at 1043-44 (vacating

and remanding where “we cannot say the inclusion of . . . conditions in the written

judgment created a direct conflict,” but “we do not have a complete and

unambiguous sentence to leave intact”).

      The specific standard conditions to which Rosario-Montalvo objects were

taken from an obsolete form of judgment. Because, upon resentencing, the district

court will use a currently applicable form of judgment, with currently applicable

standard conditions, it is unnecessary for us to rule on Rosario-Montalvo’s

constitutional objections. We do note that Standard Conditions Four, Five, and

Thirteen, as recited in the outdated judgment form imposed by the district court,

have already been deemed unconstitutionally vague. Evans, 883 F.3d at 1162-64.




                                          7                                   19-50097
      AFFIRMED in part, VACATED in part, and REMANDED. The parties

shall bear their own costs.




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