United States v. Angel Reyes-Torres

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50045

Plaintiff-Appellee, D.C. No. 3:18-cr-04986-LAB-1

v. MEMORANDUM* ANGEL REYES-TORRES,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted October 15, 2019** Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

Angel Reyes-Torres appeals from the district court’s judgment and challenges the 18-month sentence, three-year term of supervised release, and three 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.

* 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).

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

Reyes-Torres contends that the district court erred by denying the parties’ joint recommendation for a fast-track departure under U.S.S.G. § 5K³.1. We review the denial of a fast-track departure only as part of our review of the overall substantive reasonableness of the sentence. See United States v. Rosales-Gonzales, 801 F.3d 1177, 1180 (9th Cir. 2015).1 The district court did not abuse its discretion by imposing the 18-month sentence, which is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including Reyes-Torres’s significant immigration and criminal history. See Gall v. United States, 552 U.S. 38, 51 (2007).

Reyes-Torres next contends that the district court erred by failing to calculate the Guidelines range for the supervised release term and by insufficiently explaining its decision to impose a three-year term. We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and

1 Contrary to Reyes-Torres’s argument, Rosales-Gonzales is not “clearly irreconcilable” with Molina-Martinez v. United States, 136 S. Ct. 1338 (2016). See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Thus, we remain bound by Rosales-Gonzales. The record belies Reyes-Torres’s contention that the district court denied the fast-track departure based on a blanket policy. Rather, the record reflects that the court properly declined to grant the departure based on the particular circumstances of Reyes-Torres’s case. See Rosales-Gonzales, 801 F.3d at 1183-84.

2 19-50045 conclude that there is none. On this record, Reyes-Torres has not shown a reasonable probability that he would have received a different sentence had the district court expressly calculated the applicable Guidelines range or more fully explained its decision to impose the three-year term of supervised release. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).

Finally, 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 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).

AFFIRMED in part; REMANDED with instructions.

Footnotes

[3] 19-50045