                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 21 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                       No. 11-50423

              Plaintiff - Appellee,             D.C. No. 2:10-cr-00713-SJO-1

  v.

ADAN GOMEZ SUASTEGUI, AKA                       MEMORANDUM *
Adan Gomez Sautegui

              Defendant - Appellant.



                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                       Argued and Submitted January 8, 2013
                               Pasadena, California

Before: W. FLETCHER and RAWLINSON, Circuit Judges, and HELLERSTEIN,
Senior District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **
             The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.

                                          1
      Adan Gomez Suastegui (“Appellant”) appeals the 120-month sentence

imposed following his plea of guilty to conspiracy to manufacture marijuana in

violation of 21 U.S.C. §§ 841(b)(1)(A)(vii), 846. Specifically, Appellant

challenges (1) the district court’s finding that he did not qualify for safety valve

relief (18 U.S.C. § 3553(f)) from the statutory mandatory minimum sentence of

120 months and (2) a two-level upward adjustment for the specific offense

characteristic of possession of a firearm in connection with his offense, pursuant to

U.S.S.G. § 2D1.1(b)(1).1 The Appellant also requests that the case be remanded to

conform the written judgment to the oral pronouncement of sentence with regard to

drug testing and drug rehabilitation.

      We assume familiarity with the record. We affirm the district court’s

sentence, but remand with instructions to conform the written judgment to the oral

pronouncement of sentence.

                                            I

      Appellant pleaded guilty to violating 21 U.S.C. § 841(b)(1)(A), conspiracy

to manufacture marijuana, which provides a 120-month mandatory minimum

sentence. Appellant challenges the district court’s finding that he did not qualify


      1
               Appellant was sentenced pursuant to the 2010 edition of the U.S.
Sentencing Guidelines Manual. Citations to the Guidelines in this memorandum
refer to that edition.

                                           2
for safety valve relief under 18 U.S.C. § 3553(f) from the mandatory sentence. The

district court’s determination of whether a defendant qualifies for safety valve

relief is a factual determination reviewed for clear error. United States v. Ajugwo,

82 F.3d 925, 929 (9th Cir. 1996).

      To qualify for safety valve relief from a mandatory minimum sentence, a

defendant must prove, by a preponderance of the evidence, that he satisfies each of

the five criteria of 18 U.S.C. § 3553(f). United States v. Ferryman, 444 F.3d 1183,

1186 (9th Cir. 2006). The district court found that Appellant did not satisfy the

second criterion, that “the defendant did not...possess a firearm or other dangerous

weapon...in connection with the offense.” 18 U.S.C. § 3553(f)(2).

      Appellant’s conviction arises from a conspiracy to plant, cultivate, and

harvest over 4,000 marijuana plants in the San Bernardino National Forest. While

conducting on-the-ground surveillance, police officers observed Appellant, or his

co-defendant Valentine Segundo Avalos, carrying a shotgun near the campsite

where they slept, which was a short distance from the site where they planted and

cultivated the marijuana. Appellant later admitted that he carried and loaded the

firearm. When Appellant and his co-defendant were arrested, the shotgun was

found by police at the campsite.




                                          3
      The district court did not clearly err in its factual determination that

Appellant possessed a firearm in connection with his offense and therefore did not

qualify for safety valve relief.

                                           II

      In calculating Appellant’s total offense level in accordance with the

Sentencing Guidelines, the district court imposed a two-level increase pursuant to

U.S.S.G. § 2D1.1(b)(1) for possession of a firearm. The two-level adjustment is

appropriate “unless it is clearly improbable that the weapon would be connected

with the offense.” U.S.S.G. § 2D1.1 n.3 (2010).2 The district court’s determination

of whether § 2D1.1(b)(1) applies is a factual determination reviewed for clear

error. United States v. Kelso, 942 F.2d 680, 681 (9th Cir. 1991).




      2
              The 2012 edition of the U.S. Sentencing Guidelines Manual includes
this note at § 2D1.1 n.11(A).

                                           4
      In light of the facts stated above, the district court did not clearly err in

finding that Appellant possessed a firearm in connection with the offense.3

                                           III

      In pronouncing oral sentence, the district court stated, “Defendant shall

submit to one drug test within 15 days of release.” In its written Judgment and

Commitment Order, however, the court ordered Appellant to submit to one test

within fifteen days of release and at least two periodic tests thereafter in

accordance with the statutory requirements of 18 U.S.C. § 3583(d). The court’s

written judgment also ordered the Appellant to pay the costs of drug rehabilitation,

even though the court did not require Appellant to undergo drug rehabilitation.




      3
              Moreover, Appellant’s challenge to the two-level adjustment of §
2D1.1(b)(1) is academic. The two-level adjustment increased Appellant’s total
offense level from 25 to 27, corresponding to a sentencing range, at Criminal
History Category I, of between 70 and 87 months, well below the 120-month
mandatory minimum of Appellant’s sentence.
              Appellant’s co-defendant, Valentine Segundo Avalos, received a
sentence of 48 months, based on safety valve relief from the mandatory minimum
sentence of 120 months and a further downward variance. However, Avalos’
sentence is not before this Court. Our review is limited to the sentence imposed
upon the Appellant, and, notwithstanding “the need to avoid unwarranted sentence
disparities among defendants with similar records who have been found guilty of
similar conduct,” 18 U.S.C. § 3553(a)(6), we affirm the district court’s denial of
safety valve relief and its upward adjustment pursuant to § 2D1.1(b)(1), and are
constrained to affirm the 120-month mandatory minimum as 21 U.S.C. §
841(b)(1)(A) requires.

                                            5
      “[I]n this circuit, where the oral pronouncement of a defendant’s sentence is

unambiguous, but differs from the written sentence, the oral sentence controls.”

United States v. Fu Sheng Kuo, 620 F.3d 1158, 1163 (9th Cir. 2010) (internal

quotation marks and alterations omitted).4 We may remand a case to conform the

written judgment to the oral pronouncement of sentence. United States v. Goddard,

537 F.3d 1087, 1093 (9th Cir. 2008).5

      This case is therefore remanded (1) with instructions to the district judge to

conform the written judgment to the oral pronouncement of sentence requiring

Appellant to undergo one drug test within fifteen days of release, and (2) to strike

the requirement that Appellant pay for drug treatment.

      AFFIRMED in part, and REMANDED.




      4
             Since Appellant did not have a history of drug or alcohol abuse, PSR
54-55, and the statutory requirements of testing provided by 18 U.S.C. § 3583(d)
may be ameliorated or suspended if a low risk of future substance abuse is
indicated, 18 U.S.C. § 3563(a), there was adequate basis for the district court’s oral
pronouncement of sentence.
      5
              Of course, if Appellant violates the terms of supervised release by, for
example, unlawfully using a controlled substance, the district court may then
revoke or modify the conditions of supervised release and impose additional
testing. See 18 U.S.C. § 3583(e), (g).

                                          6
