NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50071
Plaintiff-Appellee, D.C. No.
3:18-cr-04962-LAB-1
v.
FRANCISCO ALFREDO PALACIOS- MEMORANDUM*
GUERRERO, AKA Alfredo Palacios-
Guerrero,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, Chief District Judge, Presiding
Submitted December 10, 2020**
Pasadena, California
Before: GOULD and R. NELSON, Circuit Judges, and COGAN,*** District Judge.
Defendant-Appellant Francisco Palacios-Guerrero appeals from the district
*
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).
***
The Honorable Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
court’s judgment and challenges the substantive reasonableness of his 60-month
sentence and the conditions of supervised release imposed after his guilty-plea
conviction for attempted reentry of a removed alien, in violation of
8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in
part, vacate in part, and remand with instructions.
Before sentencing, the Government agreed to recommend a two-level fast-
track departure under the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650
(2003), despite the fact that Appellant had previously received such fast-track
reductions three times. At the sentencing hearing, the district court expressed
concern with Appellant’s extensive criminal and immigration history and engaged
in a lengthy discussion with the Government about why they were offering another
fast-track departure to Appellant. The court declined to grant another fast-track
departure and instead calculated a Guidelines range of 37 to 46 months based on an
adjusted offense level of 15 and a criminal history category of V. Concluding that
the upper end of the range would be insufficient to deter Appellant and promote
respect for the law, the court varied upward from the Guidelines and imposed a 60-
month sentence and three years of supervised release. The court orally announced
two conditions of supervised release: Appellant could not reenter the United States
or violate any United States laws. The written judgment included those two
conditions as well as thirteen additional conditions classified as “mandatory” or
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“standard.”
Appellant contends that his 60-month sentence is substantively unreasonable
because the district court impermissibly considered perceived disparities in how
the Government recommends fast-track departures. We disagree. We review the
substantive reasonableness of a sentence for abuse of discretion. United States v.
Autery, 555 F.3d 864, 871 (9th Cir. 2009). Sentences are reasonable if they are
based on “rational and meaningful consideration of the factors enumerated in 18
U.S.C. § 3553(a).” United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012).
While one of those factors is “the need to avoid unwarranted sentence disparities”
among similarly-situated defendants, 18 U.S.C. § 3553(a)(6), a district court may
not take fast-track disparities into account in sentencing because they are
considered “warranted” disparities. United States v. Gonzalez-Zotelo, 556 F.3d
736, 738 (9th Cir. 2009).
Contrary to Appellant’s contention, the district court made clear that it based
its decision to impose a higher sentence on its consideration of the § 3553 factors,
and—given Appellant’s extensive history of custodial sentences and deportations
based on that conduct—concluded that those factors could not be consistent with
the Government’s decision to offer a fast-track departure. A sentencing court acts
fully within its discretion when it “consider[s] the defendant’s repetition of the
same or similar offenses” and bases its sentence on that fact. United States v.
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Segura-Del Real, 83 F.3d 275, 277 (9th Cir. 1996). We conclude that Appellant’s
60-month sentence was not an abuse of discretion.
Appellant next contends that the district court erred by imposing conditions
of supervised release in the written judgment that the court did not orally
pronounce at sentencing. We review whether a written judgment conflicts with the
oral pronouncement of a sentence de novo. United States v. Napier, 463 F.3d
1040, 1042 (9th Cir. 2006). The district court did not err by including additional
supervised release conditions in the written judgment because the imposition of
mandatory and standard conditions “is deemed to be implicit in an oral sentence
imposing supervised release.” Id. at 1043. We do not read the district court’s
reference to two conditions of supervised release as unambiguously asserting that it
intended to impose only two conditions.
However, as the Government concedes, the district court did err by including
conditions 4 and 7 in the written judgment because it did not provide Appellant
with the requisite notice of these now nonstandard conditions. The district court
used an outdated judgment form from 2013, and both conditions have since been
reclassified as “special” conditions, which “cannot be deemed to have been
implicit in the oral imposition of supervised release.” Id.; see U.S.S.G. supp. app.
C amend. 803 (Nov. 1, 2016). For this reason, we conclude that conditions 4 and 7
must be stricken from the judgment.
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Appellant contends that conditions 3, 5, and 13 should likewise be stricken
because the outdated versions of those conditions—which were used in
Appellant’s judgment—were previously held to be unconstitutionally vague. See
United States v. Evans, 883 F.3d 1154, 1162–63 (9th Cir. 2018). But because it
appears that the district court intended to include in the written judgment the
current versions of standard conditions 3, 5, and 13, we remand to the district court
with instructions to conform the written judgment to the current version of
standard conditions 3, 5, and 13. In light of this disposition, we need not reach
Appellant’s constitutional challenges to the earlier iteration of these conditions.
Finally, Appellant contends that conditions 1, 2, 6, 8, 9, 10, 11 and 12 are
substantively unreasonable because he will not be serving his supervised release in
the United States. A supervised release condition is substantively unreasonable “if
it is not reasonably related to the goal[s] of deterrence, protection of the public, or
rehabilitation of the offender, or if it infringes more on the offender’s liberty than
is ‘reasonably necessary’ to accomplish these statutory goals.” United States v.
Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (cleaned up) (quoting 18 U.S.C.
§ 3583(d)(2)). We conclude that the district court properly considered whether
supervised release would provide an added measure of deterrence and thus did not
abuse its discretion.
AFFIRMED in part; VACATED in part; REMANDED.
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