                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 16 2020
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.   20-50053

                Plaintiff-Appellee,             D.C. No.
                                                3:17-cr-02781-LAB-1
 v.

RICARDO LARA, AKA Ricardo Lara-                 MEMORANDUM*
Gonzalez,

                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 June 11, 2020
                            San Francisco, California

Before: M. SMITH and HURWITZ, Circuit Judges, and EZRA,** District Judge.

      Ricardo Lara pleaded guilty to one count of importation of methamphetamine

in violation of 21 U.S.C. §§ 952 & 960 and was sentenced to twenty-four months in

prison to be followed by sixty months of supervised release. After his release from



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
prison, Lara violated several conditions of supervised release. At a hearing about

the violations, the district court expressly stated it was not revoking supervised

release. The court, however, also orally imposed a custodial sentence of almost

eleven months. Notwithstanding the oral pronouncement, a subsequent written

judgment stated that supervised release had been revoked. The written judgment

also recalculated the term of supervised release to remove credit for the time spent

on release before the violations.

      On appeal, Lara asks that we direct the district court to modify the written

judgment to conform to the oral pronouncement, that his term of supervised release

be corrected to reflect credit for the time already spent on post-release supervision,

and that the custodial term be vacated. We have jurisdiction under 28 U.S.C. § 1291.

We vacate and remand.

      1.     If an unambiguous oral pronouncement of a sentence directly conflicts

with a written judgment, the former controls. United States v. Munoz-Dela Rosa,

495 F.2d 253, 256 (9th Cir. 1974) (per curiam). The parties agree that the oral

pronouncement unambiguously provided that supervised release was not revoked,

but the written judgment said that it had been. We therefore remand for the district

court to modify the written judgment to conform to the oral pronouncement. See

United States v. Hernandez, 795 F.3d 1159, 1169 (9th Cir. 2015).

      2.     Because the district court did not revoke supervised release, it should


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not have recalculated the remaining term of supervised release to remove credit for

time already spent on release. See 18 U.S.C. § 3583(e)(3). We therefore instruct the

district court on remand to correct its judgment to accurately reflect the remaining

term of supervised release.

      3.     The district court plainly erred in imposing a custodial sentence as a

condition of supervised release. See 18 U.S.C. § 3583(d), (e)(2). The purpose of

supervised release is “to assist individuals in their transition to community life” and

it therefore “fulfills rehabilitative ends, distinct from those served by incarceration.”

United States v. Johnson, 529 U.S. 53, 59 (2000). Hence, we have made clear that

“conditions of supervised release may not involve punishment or incarceration.”1

United States v. Bahe, 201 F.3d 1124, 1130–31 (9th Cir. 2000). We therefore vacate

the custodial sentence.

      VACATED AND REMANDED with instructions. The mandate shall issue

forthwith.




1
      Although 18 U.S.C. § 3563(b)(10) allows a district court, without revoking
supervised release, to remand a defendant to the “custody of the Bureau of Prisons,
during nights, weekends, or other intervals of time, totaling no more than the lesser
of one year or the term of imprisonment authorized for the offense, during the first
year of the term of . . . supervised release,” the district court did not invoke this
provision. Moreover, the custodial term imposed extends beyond the first year of
supervised release.

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