                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAY 28 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    19-50093

                Plaintiff-Appellee,             D.C. No.
                                                3:18-cr-04457-LAB-1
 v.

OSCAR BALLESTEROS,                              MEMORANDUM*

                Defendant-Appellant.

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

                             Submitted May 5, 2020**
                               Pasadena, California

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


      Defendant-Appellant Oscar Ballesteros was sentenced to 42 months of

imprisonment and three years of supervised release for transporting an illegal alien

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
for financial gain and aiding and abetting such transportation, in violation of 8

U.S.C. §§ 1324(a)(l)(A)(ii), (a)(l)(A)(v)(II), and (a)(l)(B)(i). At the oral

pronouncement of sentence, the district court announced eight special conditions of

supervised release but said nothing about mandatory or standard conditions. The

written judgment of the court included the eight special conditions, expanding,

however, the oral pronouncement of Special Conditions Six and Seven, and also

incorporated the mandatory and standard conditions. Ballesteros appeals Special

Conditions Six and Seven, and the imposition of mandatory and standard

conditions.

      We review de novo Ballesteros’ contention that conditions in the written

judgment conflicted with the oral pronouncement of sentence, since “[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). We review de novo also whether the court gave sufficient notice of a

special condition of supervised release, but, if a defendant failed to object timely,

our review is for plain error. United States v. Dailey, 941 F.3d 1183, 1188 (9th

Cir. 2019). We review the substantive reasonableness of a condition of supervised

release for abuse of discretion. United States v. Watson, 582 F.3d 974, 981 (9th

Cir. 2009).



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      At the oral pronouncement of sentence, the district court imposed Special

Condition Six, that Ballesteros “is certainly not to transport [people who are in the

country illegally] or have them in his automobile.” The written judgment

expanded this condition to require that Ballesteros “[n]ot transport, harbor or assist

undocumented aliens.” Ballesteros, citing Napier, argues that the prohibitions as

to harboring and assisting aliens should be vacated because they were not imposed

at sentencing, denying him the right to be present for the imposition of this part of

his sentence. See Napier, 463 F.3d at 1042.

      Ballesteros’ objection to “harboring” is denied. Harboring undocumented

aliens is a crime under 8 U.S.C. § 1324(a)(1)(A)(iii). A mandatory condition

required in every sentence is that defendant “not commit another federal, state or

local crime.” 18 U.S.C § 3583(d); Napier, 463 F.3d at 1042-43. Thus, the

prohibition against harboring undocumented aliens was a proper condition.

      In contrast, “assisting” undocumented aliens is a broad concept that extends

beyond criminal activity. It could prohibit a multitude of daily activities, for

example, assisting an elderly undocumented alien with grocery shopping, giving a

lift to an undocumented alien whose car broke down, etc. The condition is not

reasonably related to the goal of deterrence, protection of the public, or

rehabilitation of the offender, and imposes a greater deprivation of liberty than is



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reasonably necessary for the purposes of supervised release. United States v.

Rearden, 349 F.3d 608, 618 (9th Cir. 2003); see also 18 U.S.C. § 3553(a). The

condition is vacated.

      The district court, over defense counsel’s objection, imposed a special

condition, Special Condition Seven, that Ballesteros “not . . . knowingly associate

with people who are in the country illegally.” The written judgment stated the

condition as requiring that Ballesteros “[n]ot associate with undocumented aliens

or alien smugglers.”

      We agree with Ballesteros that the prohibition against associating with

“people who are in the country illegally,” or who are “undocumented aliens,” is

too broad and ambiguous to serve the purposes of supervised release, and that the

condition imposes a greater deprivation of liberty than is reasonably necessary.

Rearden, 349 F.3d at 618. Ballesteros is likely to encounter many undocumented

aliens with whom he could otherwise have beneficial and lawful relationships. We

vacate that condition, as pronounced by the district judge. Because it is vacated,

we need not consider Ballesteros’ argument that its imposition was procedurally

improper due to insufficient notice.

      As stated in the judgment, Special Condition Seven also prohibits

associating with “alien smugglers.” Defendant argues that since this condition was



                                         4                                      19-50093
not mentioned by the district judge, its inclusion in the written judgment conflicts

with the oral pronouncement. This portion of Special Condition Seven is

consistent with Standard Condition Eight. Standard Condition Eight prohibits

Defendant from “interact[ing] with someone [he] know[s] is engaged in criminal

activity,”1 and alien smuggling is a crime, 8 U.S.C. § 1324(a)(2). The special

condition implements the standard condition, and is reasonably related to the goals

of supervised release, and so the portion of Special Condition Seven prohibiting

interaction with alien smugglers is affirmed. However, as we stated above, the

portion of the judgment that forbids “associating with undocumented aliens” is

overbroad and ambiguous, and is vacated.

        The mandatory and standard conditions are “implicit in an oral sentence

imposing supervised release.” Napier, 463 F.3d at 1043. Where a district court

describes only special conditions of supervised release, a defendant should not

understand that the mandatory and standard conditions are excluded. The


1
    The Guidelines provide:

        The defendant shall not communicate or interact with someone the
        defendant knows is engaged in criminal activity. If the defendant
        knows someone has been convicted of a felony, the defendant shall
        not knowingly communicate or interact with that person without first
        getting the permission of the probation officer.

U.S.S.G. § 5D1.3(c)(8). The recitation of the condition in the written judgment is
virtually identical.

                                          5                                    19-50093
mandatory conditions, by statute, must be imposed. See 18 U.S.C § 3583(d)

(providing that “[t]he court shall order, as an explicit condition of supervised

release,” certain enumerated conditions); United States v. Harvey, 794 F. Supp. 2d

1103, 1105 (S.D. Cal. 2011) (“Under federal law, courts must impose certain

mandatory conditions when imposing a term of supervised release after

imprisonment.”).2 Therefore, they are affirmed.

      The standard conditions are also implicit in every sentence imposing

supervised release. Napier, 463 F.3d at 1043 (inferring imposition of standard

conditions where oral sentence advised defendant that unspecified conditions

would be included in judgment). Generally, they specify defendants’ obligations

to their probation officers, prohibit “own[ing], possess[ing], or hav[ing] access to a

firearm, ammunition, destructive device, or dangerous weapon”, and otherwise

expand on the mandatory conditions. U.S.S.G. § 5D1.3(c). The standard

conditions are “recommended to the extent that they serve the purposes of

sentencing.” United States v. Evans, 883 F.3d 1154, 1162 n.4 (9th Cir. 2018). As

we held in Napier, “[i]t is . . . better practice to advise the defendant orally, at least

in summary fashion, of the standard conditions.” 463 F.3d at 1043. However, the



2
 The mandatory conditions require Ballesteros to refrain from committing another
crime, refrain from unlawfully possessing or using a controlled substance, and
submit to drug testing.

                                            6                                      19-50093
district judge’s failure to itemize the standard conditions does not create a conflict

with the written judgment. See id. The mandatory and standard conditions in the

written judgment may serve to clarify the sentence. See Green v. United States,

447 F.2d 987, 987 (9th Cir. 1971) (per curiam) (“That the sentence in writing

should be referred to in order to resolve ambiguities in the oral pronouncement is

well settled.”); see also United States v. Truscello, 168 F.3d 61, 62-64 (2d Cir.

1999) (cited with approval by Napier).

      The district court failed to state which of the standard conditions fit

Ballesteros’ sentence, and why. We remand to the district court to do that,

consistent with this order. 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”).

      Accordingly, we affirm that part of Special Condition Six that requires

Ballesteros to refrain from harboring undocumented aliens, and we vacate the part

of Special Condition Six that requires him to refrain from assisting undocumented

aliens. We vacate that part of Special Condition Seven that prohibits Ballesteros

from associating with undocumented aliens, and we affirm the part of Special

Condition Seven that prohibits him from associating with alien smugglers. We



                                           7                                    19-50093
affirm the imposition of the mandatory conditions, and we remand to the district

court to state which of the standard conditions it believes should be imposed, and

why, in the exercise of the district judge’s discretion.

      AFFIRMED in part, REVERSED and VACATED in part, and

REMANDED in part. The parties shall bear their own costs.




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