United States v. Isai Reynaga ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50287
Plaintiff-Appellee, D.C. No. 3:18-cr-02008-LAB-1
v.
ISAI URIEL REYNAGA, MEMORANDUM*
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.
Isai Uriel Reynaga appeals from the district court’s judgment and challenges
the 30-month sentence and 3 conditions of supervised release imposed upon his
guilty-plea conviction for bringing in aliens without presentation and aiding and
abetting, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) and 18 U.S.C. § 2. We have
*
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).
jurisdiction under 28 U.S.C. § 1291, and we affirm in part and vacate and remand
in part.
Reynaga first asserts that his trial counsel was ineffective by failing to
advocate meaningfully for a favorable sentence. “As a general rule, we do not
review challenges to the effectiveness of defense counsel on direct appeal.” United
States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). Neither exception to this
general rule applies here. See id. at 1259-60. In particular, the record here is not
sufficiently developed as to “what counsel did, why it was done, and what, if any,
prejudice resulted.” United States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009).
Reynaga may raise this claim in a 28 U.S.C. § 2255 proceeding. See United States
v. McGowan, 668 F.3d 601, 606 (9th Cir. 2012).
The government concedes, and we agree, that standard supervised release
conditions 4, 5, and 13 in the written judgment are unconstitutionally vague, see
United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir.), cert. denied, 139 S. Ct.
133 (2018), and that condition 4, which requires Reynaga to “support his . . .
dependents,” should be stricken because Reynaga has no dependents. On remand,
the district court should strike condition 4 and modify conditions 5 and 13
consistent with Evans.
Reynaga’s unopposed requests to take judicial notice are granted.
AFFIRMED in part; VACATED and REMANDED in part.
2 18-50287