                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       MAR 19 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    18-50349

                Plaintiff-Appellee,             D.C. No. 3:18-cr-00660-WQH

 v.

JOSE ANTONIO MILANEZ,                           MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                     for the Southern District of California
                   William Q. Hayes, District Judge, Presiding

                            Submitted March 12, 2019**

Before:      LEAVY, BEA, and N.R. SMITH, Circuit Judges.

      Jose Antonio Milanez appeals from the district court’s judgment and

challenges the three-year term of supervised release and five conditions of

supervised release imposed following his guilty-plea conviction for being a

removed alien found in the United States, in violation of 8 U.S.C. § 1326. We



      *
             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).
have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and remand with

instructions.

      Milanez contends that the district court procedurally erred by failing to

calculate the Guidelines range for the supervised release term and by providing an

insufficient explanation for its decision to impose a three-year term of supervised

release. Because Milanez did not object below to the district court’s failure to

calculate the Guidelines range, we review for plain error, see Rosales-Mireles v.

United States, 138 S. Ct. 1897, 1904-05 (2018), and conclude that there is none.

The Guidelines range for supervised release was correctly calculated in the

presentence report, which the district court stated that it had reviewed, and Milanez

has not shown a reasonable probability that he would have received a different

sentence had the district court expressly calculated the applicable Guidelines range.

See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008). Furthermore, the

record shows that the district court considered Milanez’s mitigating arguments, and

adequately explained that a three-year term of supervised release was necessary as

an added deterrent in light of Milanez’s immigration history and the court’s

decision to impose a lower custodial sentence than Milanez had previously

received for the same offense. See U.S.S.G. § 5D1.1 cmt. n.5 (court should

consider imposing supervised release on a deportable alien when facts and

circumstances of a particular case show that supervised release would be an added


                                          2                                    18-50349
deterrent).

      The government concedes, and we agree, that conditions 4, 7, and 8 in the

written judgment conflict with the oral pronouncement of sentence, which did not

include these now-nonstandard conditions. See United States v. Napier, 463 F.3d

1040, 1042 (9th Cir. 2006). We thus remand and instruct the district court to strike

conditions 4, 7, and 8 from the written judgment. See United States v. Hicks, 997

F.2d 594, 597 (9th Cir. 1993). As the government also concedes, conditions 5 and

13 in the written judgment are unconstitutionally vague. See United States v.

Evans, 883 F.3d 1154, 1162-64 (9th Cir.), cert. denied, 139 S. Ct. 133 (2018). On

remand, the district court shall modify these conditions consistent with our opinion

in Evans.

       AFFIRMED in part; REMANDED with instructions.




                                         3                                   18-50349
