                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 27 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 15-10501

              Plaintiff-Appellee,                D.C. No. 3:11-cr-08088-NVW-1

 v.
                                                 MEMORANDUM*
DARREN QUESADA,

              Defendant-Appellant.


                    Appeal from the United States District Court
                             for the District of Arizona
                      Neil V. Wake, District Judge, Presiding

                      Argued and Submitted January 13, 2017
                            San Francisco, California

Before: WALLACE, CLIFTON, and M. SMITH, Circuit Judges.

      Defendant Darren Quesada appeals from his judgment in which he received

a sentence of three years’ imprisonment, followed by 136 months of supervised

release, and challenges eight supervised release conditions. We have jurisdiction

under 18 U.S.C. § 1291. We affirm the sentence and supervised release conditions,

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
but remand for the limited purpose of conforming the written judgment regarding

Special Condition Six with the district court’s oral pronouncement.

      The district court did not impose a lengthy prison sentence for the purpose

of enabling the Defendant to complete a treatment program, in violation of 18

U.S.C. § 3582(a) and the Supreme Court’s decision in Tapia v. United States, 564

U.S. 319 (2011). Unlike in Tapia, where the court stated it sentenced the defendant

“so she [wa]s in long enough to get the 500 Hour Drug Program,” the court here

did not evaluate the sentence length required to qualify for treatment programs, or

state that the Defendant’s sentence was designed to afford him eligibility for those

programs. Tapia, 564 U.S. at 334. Although the court stated that it could “make the

circumstances a lot more conducive to actually participating and benefitting” in a

treatment program, “[a] court commits no error by discussing the opportunities for

rehabilitation within prison or the benefits of specific treatment or training

programs.” Id. The court repeatedly stated that it imposed the sentence “to show an

appropriate measured consequence for the extraordinary breaches of trust,” and to

protect others from the risk the Defendant posed.

      The sentence length was not substantively unreasonable. In light of the

Defendant’s criminal history–involving the commission of several similar crimes

against similar victims–the revocations of supervision in his 1999 case, and the two


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revocations in the current case, there is support in the record for the district court’s

conclusion that the Defendant represented a danger to his community, and that his

repeated violations of supervised release warranted imposition of a more

substantial term. These rationales support an upward departure from the Guidelines

range. See United States v. Musa, 220 F.3d 1096, 1101 (9th Cir. 2000) (holding

that a sentencing court did not abuse its discretion in departing from the Guidelines

range when the record supported the court’s conclusion that the defendant was a

“danger to the community,” because he had been convicted of a crime that

“involved a threat against another person”); United States v. Leonard, 483 F.3d

635, 637 (9th Cir. 2007) (affirming a sentence that fell above the Guidelines range

when the defendant’s previous term of supervised release had been revoked

because he failed to refrain from illegal drug use and stay employed).

      The district court did not err in imposing the eight identified supervised

release conditions. The conditions are appropriate given the facts and

circumstances of the case, and are “reasonably related to the goals of deterrence,

protection of the public, or rehabilitation of the offender.” United States v. Watson,

582 F.3d 974, 982 (9th Cir. 2009). With no controlling precedent reversing the

standard and commonly imposed conditions on the grounds of vagueness or

overbreadth at the time the district court issued its decision, the district court did


                                            3
not plainly err in imposing these conditions. See United States v. Gnirke, 775 F.3d

1155, 1164 (9th Cir. 2015) (quoting United States v. Gonzalez-Aparicio, 663 F.3d

419, 428 (9th Cir. 2011)) (“An error ‘cannot be plain where there is no controlling

authority on point and where the most closely analogous precedent leads to

conflicting results.’”). If the conditions are no longer relevant as the period of

supervised release approaches, the Defendant may file a motion to modify the

conditions pursuant to 18 U.S.C. § 3583(e)(2).

      Finally, we remand for the limited purpose of remedying discrepancies

between the written order regarding Special Condition Six and the district court’s

oral pronouncement. Where, as is the case here, there is a “direct conflict” between

an oral pronouncement of a sentence and a written order, the oral pronouncement

controls. United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993). We remand so

that the district court can make the written judgment consistent with the oral

pronouncement.

      AFFIRMED; WRITTEN JUDGMENT VACATED AND REMANDED

TO CONFORM WITH ORAL PRONOUNCEMENT.




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