NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
NOV 05 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50136
Plaintiff - Appellee, D.C. No. 2:12-cr-00762-RGK-1
v.
MEMORANDUM*
BENJAMIN AVILA-BARRERA,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted October 21, 2015**
Pasadena, California
Before: TROTT, KLEINFELD, and CALLAHAN, Circuit Judges.
Benjamin Avila-Barrera is a Mexican citizen who was convicted under 8
U.S.C. § 1326(a) of being an illegal alien found in the United States following
deportation.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
At the first sentencing, the district court sentenced Barrera to fifty-seven
months in prison and three years of supervised release. On appeal, the Ninth
Circuit vacated and remanded for failing to consider two objections Barrera made
to his criminal history calculation. At the second sentencing, the judge sentenced
Barrera to the same punishment. The district court invited Barrera to allocute by
asking, “Did the defendant wish to be heard?” His counsel responded, “No, your
Honor.”
We affirm but remand to correct a clerical error.
I. Allocution
The district court did not violate Barrera’s right to allocute under Federal
Rule of Criminal Procedure 32. The judge must “address the defendant personally
in order to permit the defendant to speak or present any information to mitigate the
sentence.” Fed. R. Crim. P. 32(i)(4)(A)(ii). Here, if we look only at the transcript,
the judge’s invitation could have been directed to Barrera or to Barrera’s counsel.
Rule 32 does not, however, require that the record unambiguously reflect who the
judge was talking to. There is no reason, on this record, to doubt that the judge
was offering Barrera personally the opportunity to speak. We presume the trial
judge knows and correctly applied the law, see United States v. Carty, 520 F.3d
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984, 992 (9th Cir. 2008) (en banc), so we infer the judge complied with Rule 32
and personally invited Barrera to allocute. To prevent wasteful litigation, trial
judges should “unambiguously address themselves to the defendant,” as suggested
by the Supreme Court plurality in Green v. United States. 365 U.S. 301, 305-06
(1961) (affirming the lower court because the defendant did not show that the
judge did not personally address him).
II. Criminal History Category
Barrera claims the district court miscalculated his Guidelines level. He
argues his prior conviction for failing to register as a sex offender is “relevant
conduct” to the instant offense, rather than part of his criminal history. U.S.
Sentencing Guidelines Manual §§ 1B1.3(a)(1)(B), 4A1.2 cmt. n.1 (U.S. Sentencing
Comm’n 2012); see United States v. Tanke, 743 F.3d 1296, 1306-07 (9th Cir.
2014). The court did not err in finding Barrera’s conviction for failing to register
as a sex offender was a past conviction affecting his criminal history category.
Barrera offered no evidence, only counsel’s arguments, that his motive for
committing that crime was to avoid getting caught for this one, nor is it clear that
that would matter.
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III. Supervised Release
The judge may arguably have erroneously imposed three years of supervised
release on Barrera, but it was not plain error. “[R]eversal is warranted only where
there has been (1) error; (2) that is plain; (3) that affects substantial rights; and (4)
where the error seriously affects the fairness, integrity, or public reputation of
judicial proceedings.” United States v. Pelisamen, 641 F.3d 399, 404 (9th Cir.
2011).
The Guidelines recommend no supervised release for deportable aliens
likely to be deported when the statute of conviction does not require it, unless the
judge “determines” that supervised release would “provide an added measure of
deterrence and protection.” Sentencing Guidelines § 5D1.1(c) & cmt. n.5. There is
no record of the judge making that determination.
To determine whether the court’s error affected “substantial rights” we ask
whether “the probability of a different result is sufficient to undermine confidence
in the outcome of the proceeding.” United States v. Dominguez Benitez, 542 U.S.
74, 83 (2004) (quotation omitted); see United States v. Olano, 507 U.S. 725, 735
(1993). Based on Barrera’s past, it is doubtful that the error, if any, affected
“substantial rights.” Barrera’s history strongly supports that after deportation, he is
likely to return illegally as he has in the past, and his past predatory sexual conduct
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would require continuing supervision. There is no reason on this record to doubt
that, had the error been brought to the court’s attention, the result would have been
the same.
IV. Constitutionality of 8 U.S.C. § 1326(b)(2) Enhancement
Barrera raises the argument that enhancing his sentence under 8 U.S.C.
§ 1326(b)(2) was unconstitutional, but concedes his claim is foreclosed by our
decision in his previous appeal. See also Almendarez-Torres v. United States, 523
U.S. 224 (1998).
V. Clerical Error
The Judgment Order for Barrera’s conviction says he is guilty of violating
“8 USC 1326(a), (b)(1).” Subsection (b)(1) of § 1326 is a sentencing
enhancement, not a punishable offense. Pursuant to United States v. Rivera-
Sanchez, 222 F.3d 1057, 1062-66 (9th Cir. 2000), we remand for the limited
purpose of instructing the court to delete the Judgment’s reference to subsection
(b)(1).
VI. Reassignment to New Judge
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This case does not require reassignment to a new judge. See United States v.
Paul, 561 F.3d 970, 975 (9th Cir. 2009) (discussing the “unusual circumstances”
that warrant reassignment).
Barrera’s sentence is AFFIRMED. We REMAND to the district court to
correct the Judgment Order.
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