                                                                              FILED
                           NOT FOR PUBLICATION
                                                                               MAY 7 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   19-50213

              Plaintiff-Appellee,                D.C. No.
                                                 06-CR-1243-007-DMS
 v.

ALEX GOMEZ,                                      MEMORANDUM*

              Defendant-Appellant,


                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                             Submitted May 5, 2020**
                               Pasadena, California

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




      *
             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.
      Defendant-Appellant Alex Gomez was sentenced to a term of imprisonment

and supervised release in 2008. While serving the term of supervised release, he

was arrested in connection with a domestic violence incident. The district court

found him guilty of a violation of supervised release, revoked his supervised

release, and imposed a sentence of twelve months and one day in prison followed

by two years of supervised release. On appeal, Gomez challenges certain

conditions of his new term of supervised release. We have jurisdiction under 28

U.S.C. § 1291.

       During the oral pronouncement of sentence, the district court stated that it

was imposing “all of the same terms and conditions” from Gomez’s prior term of

supervised release. In the written judgment that followed, two conditions had

additional material terms. A condition prohibiting Gomez from going to Mexico

had the added requirement that he “comply with both United States and Mexican

immigration law requirements.” A condition regarding mental health treatment

had an added requirement that Gomez “[a]llow for reciprocal release of

information between the probation officer and the treatment provider.”

      “The actual imposition of a sentence occurs at the oral sentencing, not when

the written judgment later issues. Thus, it has long been the rule that, when an oral

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


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United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006). We review this

question de novo. Id. As the Government concedes, the written judgment

conflicted with the oral sentence because instead of including “all of the same

terms and conditions” as those in the 2008 judgment, it added terms to two

conditions. Therefore, we strike the terms requiring that Gomez “comply with

both United States and Mexican immigration law requirements” and “[a]llow for

reciprocal release of information between the probation officer and the treatment

provider.” See United States v. Hall, 912 F.3d 1224, 1226 (9th Cir. 2019) (per

curiam) (striking improper term from condition of supervised release).

      At the sentencing, the district court announced that it was imposing two

completely new conditions that had been recommended in a petition by Gomez’s

probation officer. Defense counsel failed to object. Gomez challenges as

unconstitutionally vague the portion of one condition requiring that he “not be

present in (or frequent) places where alcohol is the main item of sale.” “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.’” United States v.

Evans, 883 F.3d 1154, 1160 (9th Cir. 2018) (quoting United States v. Hugs, 384

F.3d 762, 768 (9th Cir. 2004)). Because the defense failed to object to this


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condition at sentencing, we review for plain error. United States v.

Rodriguez-Rodriguez, 441 F.3d 767, 772 (9th Cir. 2006). “Plain error is ‘(1) error,

(2) that is plain, and (3) that affects substantial rights.’” United States v. Ameline,

409 F.3d 1073, 1078 (9th Cir. 2005) (quoting United States v. Cotton, 535 U.S.

625, 631 (2002)). If these conditions are met, we may correct “a forfeited error

that (4) ‘seriously affects the fairness, integrity, or public reputation of judicial

proceedings.’” Id. (quoting Cotton, 535 U.S. at 631).

       The district court did not commit plain error in imposing the condition

prohibiting Gomez from “be[ing] present in (or frequent[ing]) places where

alcohol is the main item of sale.” The condition does suffer from potential

ambiguity or issues with enforcement. For example, it may be difficult to

determine whether alcohol is the “main item of sale” at a restaurant with a

substantial menu of both food and alcohol. Nonetheless, we cannot say that

imposition of the condition constitutes plain error. No controlling precedent

establishes that the condition, which multiple district courts have imposed over the

years, is unconstitutionally vague. See United States v. McIntee, 742 F. App’x

198, 200 (9th Cir. 2018) (deciding challenge to a different portion of a condition

that also prohibited “enter[ing] establishments where alcohol is the primary item of

sale”). The purported vagueness is not “so clear-cut, so obvious, a competent


                                            4
district judge should be able to avoid it without benefit of objection.” United

States v. Matus-Zayas, 655 F.3d 1092, 1098 (9th Cir. 2011) (quoting United States

v. Zalapa, 509 F.3d 1060, 1064 (9th Cir. 2007)).

      AFFIRMED in part and REVERSED in part. The parties shall bear their

own costs.




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