NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10164
Plaintiff-Appellee, D.C. No. 4:16-cr-00639-JGZ
v.
MEMORANDUM*
ENRIQUE CANDELARIO LOPEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted March 13, 2018**
Before: LEAVY, M. SMITH, and CHRISTEN, Circuit Judges.
Enrique Candelario Lopez appeals from the district court’s judgment and
challenges the 34-month concurrent sentences and two special conditions of
supervised release imposed following his guilty-plea convictions for being a felon
in possession of a firearm and ammunition, in violation of 18 U.S.C. §§ 922(g)(1)
*
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).
and 924(a)(2). We have jurisdiction under 28 U.S.C. § 1291. We affirm but
remand for the district court to conform the written judgment to the oral
pronouncement of the sentence.
Lopez first contends that the district court procedurally erred by failing to
explain adequately its rejection of his mitigating arguments—namely, that he was
not aware that the firearm he possessed had been stolen, that he disposed of the
firearm, and that he did not possess any other firearms. Because Lopez raises this
contention for the first time on appeal, we review for plain error. See United States
v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The record reflects
that the district court considered Lopez’s arguments, but concluded that they did
not warrant a below-Guidelines sentence. The court did not plainly err by failing
to provide a fuller explanation for the sentence. See Rita v. United States, 551 U.S.
338, 358-59 (2007).
Lopez next contends that his sentence is substantively unreasonable in light
of the same mitigating arguments. The district court did not abuse its discretion.
See Gall v. United States, 552 U.S. 38, 51 (2007). The within-Guidelines sentence
is substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and the
totality of the circumstances, including Lopez’s extensive criminal history. See
Gall, 552 U.S. at 51.
Finally, Lopez challenges two special conditions of supervised release. At
2 17-10164
the sentencing hearing, the district court imposed a condition that Lopez
“participate in a mental health program as directed by [his] probation officer.” The
written judgment contains the additional requirement that Lopez’s participation in
the program “may include taking prescribed medication.” As the government
concedes, the written judgment’s recitation of Condition Three conflicts with the
oral pronouncement. We thus remand to the district court to conform the judgment
to the oral pronouncement. See United States v. Hernandez, 795 F.3d 1159, 1169
(9th Cir. 2015).
Because Lopez did not object during the sentencing hearing, we review for
plain error his challenge to Condition Five, which prohibits Lopez from
communicating or otherwise interacting with his ex-girlfriend without first
obtaining his probation officer’s permission. See United States v. Johnson, 626
F.3d 1085, 1088-89 (9th Cir. 2010). The presentence report, which the district
court adopted without objection, explained that the condition was justified by
Lopez’s extensive history of domestic violence and recent police contact involving
his ex-girlfriend.
AFFIRMED; REMANDED to correct the judgment.
3 17-10164
United States v. Enrique Lopez
Combined Opinion