NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10174
Plaintiff-Appellee, D.C. No.
3:17-cr-00068-LRH-WGC-1
v.
FRANK ANTHONY OSEGUERA, Jr., MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted February 4, 2020**
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.
Frank Anthony Oseguera, Jr., appeals from the district court’s judgment and
challenges the 60-month sentence and two conditions of supervised release
imposed following his guilty-plea conviction for being a felon in possession of a
firearm, in violation of 18 U.S.C. § 922(g)(1). 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.
Oseguera contends that the sentence is substantively unreasonable because
the circumstances did not support the district court’s upward variance from the
Guidelines range. The district court did not abuse its discretion. See Gall v.
United States, 552 U.S. 38, 51 (2007). The above-Guidelines sentence is
substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and totality of
the circumstances, including Oseguera’s criminal history and the nature of the
offense. See Gall, 552 U.S. at 51. Moreover, contrary to Oseguera’s arguments,
the district court adequately explained the upward variance, see United States v.
Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc), and did not rely solely on
Oseguera’s criminal history or put undue weight on that history in imposing the
sentence, see United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir.
2009) (“The weight to be given the various factors in a particular case is for the
discretion of the district court.”).
Oseguera also challenges two conditions of supervised release. Because he
did not object below to either condition, we review for plain error. See United
States v. Blinkinsop, 606 F.3d 1110, 1118 (9th Cir. 2010). The district court did
not plainly err in imposing Special Condition 4, which subjects him to warrantless
searches. While Oseguera contends that the district court had a heightened duty to
explain its imposition of this condition because it involves a “significant liberty
2 19-10174
interest,” he does not point to any authority supporting that contention, see United
States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011) (for error to be
plain, it must be clear or obvious under existing precedent), and this court has held
that a warrantless search condition does not violate the Fourth Amendment, see
United States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007). The district court’s
reasons for imposing the condition are apparent from the record, which reflects that
the condition was warranted in light of Oseguera’s extensive criminal history and
multiple parole violations. See 18 U.S.C. § 3583(d); United States v. Cervantes,
859 F.3d 1175, 1184 (9th Cir. 2017).
Finally, the district court did not plainly err in imposing Standard Condition
13 because Oseguera has not shown that the term “risk” is unconstitutionally
vague. See United States v. Evans, 883 F.3d 1154, 1164 (9th Cir. 2018) (citing
with approval the language used in U.S.S.G. § 5D1.3(c)(12), which mirrors the
language in Standard Condition 13).
AFFIRMED.
3 19-10174