FILED
NOT FOR PUBLICATION
NOV 03 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14–10405
Plaintiff - Appellee, D.C. 4:09-cr-00386-RCC-DTF-1
v. MEMORANDUM*
CHRISTOPHER BRYAN GARCIA,
Defendants - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Argued and Submitted October 20, 2016
San Francisco, California
Before: CALLAHAN and HURWITZ, Circuit Judges, and MOLLOY,** District
Judge.
On November 28, 2008, Garcia sexually assaulted his five-year-old nephew.
A grand jury later returned an indictment charging Garcia with two counts of
aggravated sexual abuse. After unsuccessfully asking the government to offer a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Donald W. Molloy, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.
plea agreement charging him with a crime not subject to a thirty-year mandatory
minimum sentence, Garcia was found guilty by a jury of both counts of the
indictment.
At sentencing, the district court applied a sentencing enhancement for an
alleged pattern of engaging in prohibited sexual conduct, and imposed two
concurrent 480 month terms. On appeal, we affirmed Garcia’s convictions but
vacated the sentences and remanded for resentencing, finding insufficient evidence
to support the enhancement. United States v. Garcia, 500 F. App’x 653 (9th Cir.
2012). On remand, the district court resentenced Garcia to concurrent terms of 360
months in prison, placed him on lifetime supervised release, and imposed a $200
special assessment and $5,000 in restitution.
Garcia timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291,
and we affirm in part, vacate in part, and remand to the district court for the limited
purpose of conforming the supervised release conditions in the judgment to the
oral pronouncement of sentence.
1. The thirty-year mandatory minimum sentence required by § 2241(c)
does not conflict with 18 U.S.C. § 3553(a). Although “a district court must
consider the § 3553(a) factors in all cases,” § 3553(a) does not authorize “a district
court to impose a sentence below a mandatory statutory minimum,” absent other
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specific statutory authority. United States v. Wipf, 620 F.3d 1168, 1169–71 (9th
Cir. 2010). Nor does an unwarranted sentencing disparity exist merely because
seemingly similarly-situated defendants received lesser sentences as a result of plea
deals. United States v. Treadwell, 593 F.3d 990, 1011–12 (9th Cir. 2010).
2. The § 2241(c) mandatory minimum sentence does not violate the Eighth
Amendment as applied to Garcia. Because sexual crimes involving children cause
grave harm, United States v. Meiners, 485 F.3d 1211, 1213 (9th Cir. 2007) (per
curiam), Garcia’s sentence is “proportionate to the crime for which [he] has been
convicted,” Solem v. Helm, 463 U.S. 277, 290 (1983). The sentence is not cruel
and unusual “simply because it is ‘mandatory.’” Harmelin v. Michigan, 501 U.S.
957, 995–96 (1991).
3. Garcia’s constitutional rights were not violated because the government
refused to offer him a plea agreement providing for a lesser sentence. Under the
doctrine of separation of powers, a court generally lacks the power to tell a
prosecutor what charges to bring, In re Ellis, 356 F.3d 1198, 1209–10 (9th Cir.
2004), or to interfere “with a prosecutor’s discretion regarding . . . whether to
engage in plea negotiations,” United States v. Banuelos-Rodriguez, 215 F.3d 969,
976 (9th Cir. 2000) (en banc). This case does not present “proof of discrimination
based on suspect characteristics” which might give a court jurisdiction to review
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the prosecutor’s charging decision. Banuelos-Rodriguez, 215 F.3d at 977 (quoting
United States v. Oakes, 11 F.3d 897, 899 (9th Cir. 1993)).
4. Nor does the mandatory minimum sentence under § 2241(c) violate
separation of powers. United States v. Major, 676 F.3d 803, 811 (9th Cir. 2012).
“Congress has the power to define criminal punishments without giving the courts
any sentencing discretion.” Chapman v. United States, 500 U.S. 453, 467 (1991).
5. However, the written judgment directly conflicted with the unambiguous
oral pronouncement of sentence. United States v. Munoz-Dela Rosa, 495 F.2d 253,
256 (9th Cir. 1974). The district court’s oral pronouncement unambiguously
adopted the supervised release conditions of the presentence report. The written
judgment conflicts with several conditions in the presentence report: (1) special
condition number six in the presentence report conflicts with special condition
number five in the written judgment; (2) special condition number nine in the
presentence report conflicts with special condition number eight in the written
judgment; and (3) special condition number 10 in the presentence report conflicts
with special condition number nine in the written judgment. Because the oral
pronouncement controls, Munoz-Dela Rosa, 495 F.2d at 256, we vacate the
sentence and remand to the district court with instructions to amend the written
judgment to conform with the oral pronouncement of sentence.
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AFFIRMED IN PART, VACATED IN PART, AND REMANDED.
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