NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 03 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 08-50466
Plaintiff - Appellee, D.C. No. 2:08-cr-00503-GAF-1
v.
MEMORANDUM*
ANTONIO TRUJILLO, AKA Lil
Wicked,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted June 10, 2010
Pasadena, California
Before: KOZINSKI, Chief Judge, RAWLINSON, Circuit Judge and
BENNETT, District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Mark W. Bennett, U.S. District Judge for the Northern
District of Iowa, sitting by designation.
page 2
The district court gave three alternative grounds for imposing two additional
criminal history points under U.S.S.G. § 4A1.1(d). The defendant challenged only
one ground in his opening brief, and so challenges to the others are waived. See
Rodriguez v. Hayes, 591 F.3d 1105, 1118 n.6 (9th Cir. 2010) (“[F]ailure of a party
in its opening brief to challenge an alternate ground for a district court’s ruling
given by the district court waives that challenge.” (emphasis omitted)); see also
Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1110 n.1 (9th Cir. 2000) (en banc). Even
if the government’s mention of these alternate grounds in its response brief could
be considered a “waiver of waiver,” which would give us the discretion to review
these claims, see Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004), we
wouldn’t do so because the defendant never challenged the district court’s third
independent basis.
Additionally, the district court did not err in requiring the defendant to
undergo at least two drug tests in its written judgment because it didn’t directly
conflict with its oral sentence requiring “periodic drug testing . . . not to exceed
eight tests per month.” Cf. United States v. Hicks, 997 F.2d 594, 597 (9th Cir.
1993) (remanding to conform the written judgment to the oral sentence where
“there [was] a direct conflict”).
page 3
We remand to the district court with instructions that it delete from the
judgment the incorrect reference to section 1326(b). See United States v.
Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding to delete erroneous
reference to section 1326(b)); see also United States v. Rivera-Sanchez, 222 F.3d
1057, 1062 (9th Cir. 2000).
AFFIRMED; REMANDED TO CORRECT JUDGMENT