NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50236
Plaintiff-Appellee, D.C. No. 3:18-cr-02877-LAB
v.
MEMORANDUM*
JOSE MARIN SALDANA-REYES,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted May 21, 2019**
Before: THOMAS, Chief Judge, FRIEDLAND and BENNETT, Circuit Judges.
Jose Marin Saldana-Reyes appeals from the district court’s judgment and
challenges the 12-month sentence 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. We have jurisdiction under 28
*
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).
U.S.C. § 1291, and we affirm in part and vacate and remand in part.
Saldana-Reyes first contends that the district court erred procedurally by
manipulating the Guidelines range to achieve its preferred sentence when it denied
a fast-track departure pursuant to U.S.S.G. § 5K3.1. We review for plain error, see
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and
conclude that there is none. The district court’s preliminary statement regarding its
view of the appropriate sentencing range, followed by extensive opportunity for
argument from the parties, does not undermine its ultimately proper procedure.
See United States v. Rosales-Gonzales, 801 F.3d 1177, 1181-82 (9th Cir. 2015).
Moreover, the record does not reflect any impermissible “blanket policy of
denying the fast-track departure.” Id. at 1184.
Saldana-Reyes also contends that the sentence is substantively unreasonable.
The district court did not abuse its discretion. See Gall v. United States, 552 U.S.
38, 51 (2007). The sentence is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) sentencing factors and the totality of the circumstances, including
Saldana-Reyes’s immigration and criminal history. See Gall, 552 U.S. at 51.
Finally, Saldana-Reyes challenges three conditions of supervised release—
standard supervised release conditions 4, 5, and 13. The government concedes,
and we agree, that conditions 4, 5, and 13 in the written judgment are
unconstitutionally vague. See United States v. Evans, 883 F.3d 1154, 1162-64 (9th
2 18-50236
Cir.), cert. denied, 139 S. Ct. 133 (2018). We therefore remand for the district
court to modify these conditions consistent with our opinion in Evans.
AFFIRMED in part; VACATED and REMANDED in part.
3 18-50236
United States v. Jose Saldana-Reyes
Combined Opinion