NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 20 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50186
Plaintiff-Appellee, D.C. No.
3:17-cr-04445-LAB-1
v.
JOSE ALFREDO ROJAS-MARTINEZ, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted October 21, 2019
Pasadena, California
Before: KLEINFELD, PAEZ, and CALLAHAN, Circuit Judges.
Jose Alfredo Rojas-Martinez appeals his sentence after pleading guilty to
illegal reentry under 8 U.S.C. § 1326. Rojas-Martinez first argues the government
breached the plea agreement at the sentencing hearing. We disagree and therefore
enforce the plea agreement’s issue waiver. Rojas-Martinez next argues the district
court violated his right to be present at sentencing when it imposed conditions of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
supervised release for the first time in its written judgment. We agree and
therefore remand with instructions.
1. We first address whether we can consider Rojas-Martinez’s argument
that the government breached the plea agreement, which he did not raise before the
district court. The plea agreement speaks directly to the issue of government
breach of the agreement. Section XII provides that Rojas-Martinez and his
attorney
shall raise, before the sentencing hearing is complete, any claim that the
Government has not complied with this agreement. Otherwise, such claims
shall be deemed waived (that is, deliberately not raised despite awareness
that the claim could be raised), cannot later be made to any court, and if later
made to any court, shall constitute a breach of this agreement.
Neither Rojas-Martinez nor his attorney raised at the sentencing hearing any claim
that the government had not complied with the plea agreement. Thus, by the terms
of the plea agreement, Rojas-Martinez waived his claim of the government’s
breach, and he is not entitled to raise that claim here. Nevertheless, even if we
were to consider the argument, see United States v. Hernandez-Castro, 814 F.3d
1044, 1045 (9th Cir. 2016), we would reject it.
2. Under the plea agreement, the government promised to “jointly
recommend” a four-level departure based on an early disposition program known
as “Fast Track.” Before the sentencing hearing, the government recommended that
departure in writing. At the hearing, the government reiterated its
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recommendation, explaining that the government was “prepared to submit” based
on its written recommendation. The government thus kept its promise, and the
government did not impliedly break it by making statements “indicating a
preference for a harsher sentence,” United States v. Franco-Lopez, 312 F.3d 984,
992 (9th Cir. 2002), or serving “no purpose but to influence the court to give a
higher sentence,” United States v. Whitney, 673 F.3d 965, 971 (9th Cir. 2012). The
government was under no obligation to provide its recommendation
“enthusiastically.” United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999).
We find no breach here.
Rojas-Martinez argues, given the promise to recommend a departure “for”
Fast Track, that the government had to say more about why a Fast Track departure
was appropriate in his case. But the government disclosed the basis of its
recommended departure. The district court was aware of the recommended Fast
Track departure, repeatedly asked about it at hearing, and even discussed the
United States Department of Justice’s internal guidance on the Fast Track program.
Rojas-Martinez essentially argues that the government had to affirmatively defend
its exercise of discretion in recommending a Fast Track departure. But the plea
agreement made no such promise.
The government did not breach the plea agreement. We therefore enforce
the plea agreement’s issue waiver against Rojas-Martinez and dismiss the appeal to
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the extent Rojas-Martinez asserts the government’s breach.
3. A defendant has a right to be present at his sentencing under the Sixth
Amendment and the Federal Rules of Criminal Procedure. United States v. Napier,
463 F.3d 1040, 1042 (9th Cir. 2006); Fed. R. Crim. P. 43(a)(3). The actual
imposition of a sentence occurs at the oral sentencing, not when the written
judgment is later entered. United States v. Aguirre, 214 F.3d 1122, 1125 (9th Cir.
2000). Thus, when an oral sentence is unambiguous, it controls over a written
sentence that directly conflicts with it. Napier, 463 F.3d at 1042. Imposition of
mandatory or standard conditions of supervised release is deemed to be implicit in
an oral sentence. Id. When the oral sentence is ambiguous, the written judgment
may clarify the oral pronouncement but may not substantively add to it. United
States v. Garcia, 37 F.3d 1359, 1368 (9th Cir. 1994).
Here, the parties agree that the district court’s imposition of three styled-
“standard” conditions of supervised release—none of which are among the
Sentencing Guidelines’ enumerated standard conditions—were not implied by the
court’s pronouncement. See Napier, 463 F.3d at 1043; U.S.S.G. 5D1.3(c)–(d).
The oral pronouncement controls, and we vacate the judgment and remand with
instructions to strike these three conditions. See United States v. Jones, 696 F.3d
932, 938 (9th Cir. 2012).
Rojas-Martinez also challenges a styled-“special” condition of supervised
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release requiring Rojas-Martinez to “report to the probation officer within 72 hours
of any reentry to the United States.” In pronouncing sentence, the district court did
not reference such a condition. Because the condition would substantively alter
Rojas-Martinez’s sentence, we must vacate it. Napier, 463 F.3d at 1043. But
unlike with the three styled-“standard” conditions, the oral pronouncement is
ambiguous regarding this condition. By pronouncing that Rojas-Martinez “don’t
come back to the United States,” the district court contemplated that he might
return but never explained what Rojas-Martinez was required to do if he did.
Given the ambiguity in the oral pronouncement, we remand for resentencing as to
this “special” condition. Id.
In sum, in light of the plea agreement’s issue waiver, we dismiss Rojas-
Martinez’s appeal to the extent it asserts the government breached the plea
agreement at sentencing. We also vacate all four of the challenged conditions. On
remand, the district court should strike the three styled-“standard” conditions, and
resentence or otherwise reconsider the styled-“special” condition.
DISMISSED in part; VACATED in part; and REMANDED.
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