United States v. Xzavione Taylor ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 21-10377
Plaintiff-Appellee, D.C. No. 2:20-cr-
00204-GMN-
v. EJY-1
XZAVIONE TAYLOR,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, District Judge, Presiding
Argued and Submitted December 7, 2022
San Francisco, California
Filed March 1, 2023
Before: Daniel A. Bress and Lawrence VanDyke, Circuit
Judges, and Jane A. Restani, * Judge.
Opinion by Judge Bress
*
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
2 UNITED STATES V. TAYLOR
SUMMARY **
Criminal Law
The panel affirmed the district court’s denial of a motion
to suppress evidence discovered following a traffic stop, and
remanded for the district court to conform the written
judgment to its oral pronouncement of sentence, in a case in
which Xzavione Taylor entered a conditional guilty plea to
being a felon in possession of a firearm.
The panel held that the officers did not unreasonably
prolong the traffic stop. The panel wrote:
• An officer’s asking Taylor two questions about weapons
early in the counter—once before the officer learned that
Taylor was on federal supervision for being a felon in
possession and once after—was a negligibly
burdensome precaution that the officer could reasonably
take in the name of safety.
• An officer did not unlawfully prolong the traffic stop
when he asked Taylor to exit the vehicle.
• The officers’ subjective motivations are irrelevant
because the Fourth Amendment’s concern with
reasonableness allows certain actions to be taking in
certain circumstances, whatever the subjective intent.
• A criminal history check and the officers’ other actions
while Taylor was outside the car were within the lawful
scope of the traffic stop.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. TAYLOR 3
• Even if, contrary to precedent, the frisk and criminal
history check were beyond the original mission of the
traffic stop, they were still permissible based on the
officers’ reasonable suspicion of an independent
offense: Taylor’s unlawful possession of a gun.
As to whether the officers violated the Fourth
Amendment when they searched Taylor’s car, the panel held
that the district court did not err in finding that Taylor
unequivocally and specifically consented to a search of the
car for firearms.
Taylor conceded that precedent forecloses his
constitutional challenge to a risk-notification condition of
supervised release. The panel remanded for the district court
to conform the written judgment to its oral pronouncement
of conditions concerning outpatient substance abuse
treatment and vocational services programs.
COUNSEL
Aarin E. Kevorkian (argued) and Raquel Lazo, Assistant
Federal Public Defenders; Rene L. Valladares, Federal
Public Defender; Federal Public Defender’s Office; Las
Vegas, Nevada; Erin Michelle Gettel, Snell & Wilmer, Las
Vegas, Nevada; for Defendant-Appellant.
Peter H. Walkingshaw (argued), James Alexander Blum, and
Robert Lawrence Ellman, Assistant United States Attorneys;
Elizabeth O. White, Appellate Chief; James M. Frierson,
United States Attorney; Office of the United States Attorney,
District of Nevada; Reno, Nevada; for Plaintiff-Appellee.
4 UNITED STATES V. TAYLOR
OPINION
BRESS, Circuit Judge:
Police stopped Xzavione Taylor for a traffic violation,
which led to the discovery of a firearm that Taylor, a
convicted felon, could not lawfully possess. We hold that
the officers did not unreasonably prolong the stop and that
Taylor voluntarily consented to the search of his car. We
therefore affirm the district court’s denial of Taylor’s motion
to suppress. But on one aspect of Taylor’s supervised
release, we remand for the district court to conform its
written judgment to the court’s oral pronouncement of
Taylor’s sentence.
I
On July 10, 2020, Officers Anthony Gariano and
Brandon Alvarado were patrolling in Northeast Las Vegas
when they spotted a car with no license plate or temporary
registration tags. The events that followed were recorded on
the officers’ body-worn cameras.
Gariano and Alvarado stopped the driver, Xzavione
Taylor, who had no driver’s license or other means of
identification. When Gariano asked Taylor if he knew why
police had pulled him over, Taylor said that he did,
explaining that he had just acquired the vehicle from his
aunt. As part of his standard questioning during traffic stops,
Gariano asked Taylor whether the vehicle contained any
“guns/knives/drugs,” which Taylor denied. In response to
Gariano’s inquiry whether Taylor had ever been arrested
before, including for “anything crazy, anything violent,”
Taylor stated that he was on parole (i.e., federal supervision)
for being a felon in possession of a firearm. Taylor also
UNITED STATES V. TAYLOR 5
provided Gariano his name, Social Security number, and
date of birth.
Gariano later confirmed in his testimony that
“everything changed” when he learned that Taylor had been
convicted for being a felon in possession because Gariano
became concerned that Taylor might be armed. Gariano
asked Taylor if he was in violation of his supervision
conditions or if he had weapons on him, which Taylor again
denied. About a minute and thirty seconds into their
conversation, Gariano asked Taylor to step out of the car.
Taylor complied.
Until that point, it is not clear how much the officers
could see of Taylor’s person. Gariano’s bodycam footage
showed that, at a minimum, Gariano likely could see a red
strap on Taylor’s left shoulder while Taylor remained seated
in his car. Once Taylor emerged from the car, however, it
became obvious that he was wearing a distinctive unzipped
red fanny pack slung across his upper body.
The unzipped fanny pack appeared to be light and empty.
Gariano asked Taylor to remove the fanny pack, and, in the
process, Gariano touched, slightly opened, and lifted the
pack. Both officers later explained that the empty fanny
pack aroused their suspicions. Alvarado testified that “it’s
known that’s where subjects primarily sometimes conceal
weapons.” Gariano similarly testified that “we’ve been
seeing an . . . uptick of people concealing firearms in fanny
packs that are slung around their body,” and that he “just
wanted to make sure that there [were] no weapons on his
person at that point.”
Alvarado chatted with Taylor and pat-frisked him. The
two recognized each other because Alvarado had been a
correctional officer at the prison where Taylor was
6 UNITED STATES V. TAYLOR
previously incarcerated. As the district court described, the
interaction was “calm” and, in fact, “friendly.”
Gariano, meanwhile, returned to his patrol car and ran a
criminal history check on Taylor, which would also allow
him to verify Taylor’s identity. By the time Gariano
returned to his patrol car to initiate this computerized check,
Taylor had been stopped for around three minutes and had
been outside his vehicle for approximately 40 seconds.
From his records check, Gariano learned that Taylor had at
least two previous felony convictions for grand larceny and
robbery. Gariano exited his patrol car and asked Taylor for
consent to search his vehicle. The conversation went as
follows:
GARIANO: Is there anything in the car?
TAYLOR: No, no I just got it from my aunt.
GARIANO: No guns?
TAYLOR: No, sir.
GARIANO: Alright, cool if we check?
TAYLOR: It don’t matter, I just got it, I just
got it, it don’t matter to me.
Gariano searched Taylor’s car for less than a minute and
found a handgun under the driver’s seat. Alvarado then
placed Taylor under arrest. Taylor received Miranda
warnings. He admitted to the officers that he carried the gun
for protection, explaining that he normally placed it in the
red fanny pack but kept it under the seat while driving.
A federal grand jury indicted Taylor for being a felon in
possession of a firearm. See 18 U.S.C. § 922(g)(1). Taylor
filed a motion to suppress evidence of the gun and his
UNITED STATES V. TAYLOR 7
ensuing incriminating statements as the fruits of an unlawful
seizure and search. In his view, the officers violated the
Fourth Amendment by prolonging the traffic stop without
reasonable suspicion and by searching the car without proper
consent.
After a suppression hearing at which Gariano and
Alvarado both testified, a magistrate judge recommended
granting Taylor’s motion to suppress. The district court
disagreed. The district court found that once officers
observed Taylor’s unzipped fanny pack, under the totality of
circumstances they had reasonable suspicion to believe that
Taylor was a felon in possession of a firearm, so the stop was
not unlawfully prolonged. After a remand to the magistrate
judge for a recommendation on the consent question, the
district court agreed with the magistrate judge that Taylor
voluntarily consented to a search of his car. The court thus
denied Taylor’s motion to suppress.
Taylor entered a conditional guilty plea that preserved
his right to appeal the denial of his motion to suppress. He
was sentenced to twenty months’ imprisonment and three
years of supervised release. Taylor now appeals. We review
the district court’s denial of a motion to suppress de novo
and its factual findings for clear error. United States v.
Bontemps, 977 F.3d 909, 913 (9th Cir. 2020).
II
A
Under the Fourth Amendment, a seizure for a traffic stop
is “a relatively brief encounter,” “more analogous to a so-
called Terry stop than to a formal arrest.” Rodriguez v.
United States, 575 U.S. 348, 354 (2015) (quoting Knowles v.
Iowa, 525 U.S. 113, 117 (1998) (alterations omitted)). To
8 UNITED STATES V. TAYLOR
be lawful, a traffic stop must be limited in its scope: an
officer may “address the traffic violation that warranted the
stop,” make “ordinary inquiries incident to the traffic stop,”
and “attend to related safety concerns.” Id. at 354–55
(quotations and alterations omitted). The stop may last “no
longer than is necessary to effectuate” these purposes and
complete the traffic “mission” safely. Id. at 354–55 (first
quoting Florida v. Royer, 460 U.S. 491, 500 (1983)
(plurality opinion); and then quoting Illinois v. Caballes, 543
U.S. 405, 407 (2005)). However, a stop “may be extended
to conduct an investigation into matters other than the
original traffic violation” so long as “the officers have
reasonable suspicion of an independent offense.” United
States v. Landeros, 913 F.3d 862, 867 (9th Cir. 2019).
In this case, it is undisputed that the officers had a proper
basis for stopping Taylor: he was driving without license
plates or temporary tags. Once Taylor was stopped on the
side of the street, Gariano was permitted to ask Taylor basic
questions, such as whether Taylor knew why he had been
pulled over, whether he had identification, whether he had
been arrested before, and whether he had any weapons in the
vehicle. These are “ordinary inquiries” incident to a traffic
stop made as part of “ensuring that vehicles on the road are
operated safely and responsibly,” or else are “negligibly
burdensome precautions” that an officer may take “in order
to complete his mission safely.” Rodriguez, 575 U.S. at
355–56; see also id. at 355 (officers during traffic stops may
check licenses, check for outstanding warrants against the
driver, and inspect registration and insurance); United States
v. Nault, 41 F.4th 1073, 1078–79, 1081 (9th Cir. 2022).
Here, as is typical, these inquiries took mere seconds and
were properly within the mission of the stop. Gariano did
fleetingly mention drugs in the same breath that he asked
UNITED STATES V. TAYLOR 9
about weapons, but Taylor gave a single answer to the
combined question and this did not measurably prolong the
stop. See Rodriguez, 575 U.S. at 355 (“An officer . . . may
conduct certain unrelated checks during an otherwise lawful
traffic stop.”).
It is of no moment, as Taylor protests, that Gariano asked
about weapons a second time within the first 90 seconds of
the stop, after Taylor had already responded in the negative.
There is no strong form “asked and answered” prohibition in
a Fourth Amendment analysis, the touchstone of which is
reasonableness. Asking two questions about weapons early
in the encounter—once before Gariano learned that Taylor
was on federal supervision for being a felon in possession
and once after—was a negligibly burdensome precaution
that Gariano could reasonably take in the name of officer
safety. See Maryland v. Wilson, 519 U.S. 408, 413 (1997)
(noting that “traffic stops may be dangerous encounters”).
The two questions did not unreasonably prolong the stop.
Nothing in our precedents prevented Gariano from verifying
an answer to an important question that bore on the danger
Taylor might pose.
Gariano also did not unreasonably prolong the stop when
he asked Taylor to step out of the vehicle. Decades ago, in
Pennsylvania v. Mimms, 434 U.S. 106, 110–11 (1977) (per
curiam), the Supreme Court held that police officers during
a traffic stop may ask the driver to step out of the vehicle.
See also United States v. Williams, 419 F.3d 1029, 1030 (9th
Cir. 2005) (“[I]t is well established that an officer effecting
a lawful traffic stop may order the driver and the passengers
out of a vehicle . . . .”). The rationale is officer safety:
“[t]raffic stops are ‘especially fraught with danger to police
officers,’” Rodriguez, 575 U.S. at 356 (quoting Arizona v.
Johnson, 555 U.S. 323, 330 (2009)), and when it comes to
10 UNITED STATES V. TAYLOR
having a driver stand outside his vehicle, the “legitimate and
weighty” justification of officer safety outweighs the
“additional intrusion” on the driver, which “can only be
described as de minimis.” Mimms, 434 U.S. at 110–11.
Once outside the stopped vehicle, the driver may also “be
patted down for weapons if the officer reasonably concludes
that the driver ‘might be armed and presently dangerous.’”
Johnson, 555 U.S. at 331 (quoting Mimms, 434 U.S. at 112).
By this authority, Gariano did not unlawfully prolong the
traffic stop when he asked Taylor to exit the vehicle. Taylor
argues otherwise, claiming that once he disclosed his felon-
in-possession conviction, officers pivoted to a “fishing
expedition” into whether Taylor might have a firearm.
This argument is misplaced. The officers’ subjective
motivations are irrelevant because “the Fourth
Amendment’s concern with ‘reasonableness’ allows certain
actions to be taken in certain circumstances, whatever the
subjective intent.” Whren v. United States, 517 U.S. 806,
814 (1996). In this case, Mimms and its progeny made clear
that officers could have Taylor exit his vehicle in the interest
of officer safety. See Johnson, 555 U.S. at 331. That was so
regardless of whether the officers may have subjectively
believed they were on to something more than a vehicle
lacking license plates. The officers’ subjective motivations,
whatever they may have been, could not change the
objective reasonableness of their actions. Cf. United States
v. Magallon-Lopez, 817 F.3d 671, 675 (9th Cir. 2016) (“If,
for example, the facts provide probable cause or reasonable
suspicion to justify a traffic stop, the stop is lawful even if
the officer made the stop only because he wished to
investigate a more serious offense.”).
UNITED STATES V. TAYLOR 11
Thus far, we have considered the officers’ conduct
before Taylor exited his car, and we have found that it
formed part of the lawful traffic stop. Taylor maintains,
however, that the remaining portion of his seizure was too
attenuated from the traffic stop. From Taylor’s perspective,
once he was outside the car, the stop was unconstitutionally
prolonged, meaning that the later-discovered gun and
Taylor’s own inculpatory statements should have been
suppressed.
Taylor’s argument is unavailing. Doctrinally, we can
approach this issue in two different ways, with both paths
leading to the same answer: the officers did not violate the
Fourth Amendment. The first ground for affirmance on this
point is that Gariano’s criminal history check and the
officers’ other actions while Taylor was outside the car were
within the lawful scope of the traffic stop. Gariano thus did
not improperly prolong the stop when he spent a few minutes
consulting computerized databases in his patrol car. In
United States v. Hylton, 30 F.4th 842 (9th Cir. 2022), we
specifically rejected the argument that a “criminal history
check [is] a prolongation of the stop and need[s] to be
supported by independent reasonable suspicion.” Id. at 847.
Instead, we aligned ourselves with the other circuits and held
that “because a criminal history check ‘stems from the
mission of the stop itself,’ it is a ‘negligibly burdensome
precaution’ necessary ‘to complete the stop safely.’” Id. at
848 (quoting Rodriguez, 575 U.S. at 356) (alterations
omitted).
Taylor asserts that Hylton should not govern because
here the officers knew or should have known that Taylor
posed no danger when he was compliant during the stop,
which had friendly overtones. Taylor’s effort to distinguish
Hylton fails. Taylor again improperly focuses on what the
12 UNITED STATES V. TAYLOR
officers might have subjectively believed when what
matters, under Hylton, is that conducting a criminal records
check in connection with a traffic stop is objectively
reasonable. The officers here did not abandon the traffic
stop and acted properly under Hylton. It is true that Taylor
was compliant. But that a driver is acting cooperatively does
not prevent police from performing actions that are
permissibly within the mission of a traffic stop. Regardless,
the officers clearly did have a basis to believe that Taylor
posed a danger, as we will discuss.
Taylor points out that officers began the process of
checking him for weapons before Gariano went to his patrol
car to check criminal history, claiming that this part of the
pat-down also unreasonably extended the stop. But as we
noted above, officers in the course of a lawful investigatory
stop of a vehicle may pat down the driver for weapons “if
the officer reasonably concludes that the driver ‘might be
armed and presently dangerous.’” Johnson, 555 U.S. at 331(quoting Mimms, 434 U.S. at 112). Here, the officers could
have had that reasonable suspicion once they observed
Taylor fully outside of the vehicle.
The reasonable suspicion standard “is not a particularly
high threshold to reach” and is less than probable cause or a
preponderance of the evidence. United States v. Valdes-
Vega, 738 F.3d 1074, 1078 (9th Cir. 2013) (en banc). The
standard allows officers to make “commonsense judgments
and inferences about human behavior.” Kansas v. Glover,
140 S. Ct. 1183, 1188 (2020) (quoting Illinois v. Wardlow,
528 U.S. 119, 125 (2000)). In doing so, officers may “draw
on their own experience and specialized training” to arrive
at conclusions “that might well elude an untrained person.”
Valdes-Vega, 738 F.3d at 1078 (quoting United States v.
Arvizu, 534 U.S. 266, 273 (2002)).
UNITED STATES V. TAYLOR 13
At the point when Gariano asked Taylor, consistent with
Mimms, to exit the vehicle, the officers knew that Taylor was
driving a vehicle without license plates or registration tags,
that he lacked identification, and that he was on federal
supervision for being a felon in possession of a firearm. But
once Taylor stepped out of the car, officers had another data
point: Taylor’s distinctive unzipped fanny pack slung across
his chest. Both officers testified that fanny packs are
commonly used to store weapons, with Gariano noting
police had seen “an uptick” in this behavior. The district
court did not clearly err in crediting the officers’ testimony.
See Bontemps, 977 F.3d at 917 (district court’s factual
finding that a bulge in clothing appeared to be a firearm was
not illogical or implausible when it was based on credible
officer testimony). That the fanny pack was empty and
unzipped added to the reasonable suspicion. As Officer
Alvarado testified, it was “odd” that Taylor had the fanny
pack “on his person” when “there was nothing in it.”
We of course recognize that standing alone, a fanny pack
is not necessarily an unusual item of apparel. We certainly
do not suggest that officers have reasonable suspicion to
frisk anyone who wears that accessory. But here, the fanny
pack was curiously empty and unzipped, and it did not stand
on its own: officers had just pulled Taylor over for driving
without license plates, Taylor had no identification, and,
most critically, Taylor had just disclosed that he was on
federal supervision for being a felon in possession of a
firearm. When combined with the officers’ experience with
fanny packs, the circumstances taken as a whole created
reasonable suspicion that Taylor, who was not permitted to
have a gun, might have one. Cf. United States v. Garcia, 909
F.2d 389, 391–92 (9th Cir. 1990) (affirming the denial of
motion to suppress because based on the totality of
14 UNITED STATES V. TAYLOR
circumstances, “reasonably prudent officers would have
patted down both the man and the [fanny] pack that could
have contained a weapon”). Reasonable suspicion existed
regardless of whether Northeast Las Vegas is a high crime
area, a point Taylor disputes.
We mentioned above that there is a second doctrinal
pathway to affirming the denial of Taylor’s motion to
suppress as to the duration of the stop once Taylor stepped
out of the car. The second pathway is this: even if officers
prolonged the encounter beyond the original mission of the
traffic stop, they had a sufficient basis to do so. As we have
described, the officers knew about Taylor’s traffic offenses
and that he was on federal supervision for being a felon in
possession, and once Taylor stepped out of the car, the
officers could clearly see Taylor’s unzipped, empty fanny
pack. At that point, under the totality of the circumstances,
and for the reasons we gave above, officers had “reasonable
suspicion of an independent offense.” Landeros, 913 F.3d
at 867; see also Rodriguez, 575 U.S. at 358. Thus, even if,
contrary to precedent, the frisk and criminal history check
were beyond the mission of the traffic stop, they were still
permissible based on the officers’ reasonable suspicion of an
independent offense: Taylor’s unlawful possession of a gun.
B
Having concluded that the stop was not unlawfully
prolonged, we turn next to whether officers violated the
Fourth Amendment when they searched Taylor’s car.
“Warrantless searches are presumptively unreasonable
under the Fourth Amendment, subject to certain exceptions.”
Verdun v. City of San Diego, 51 F.4th 1033, 1037–38 (9th
Cir. 2022). Consent is one such “specifically established”
exception. Schneckloth v. Bustamonte, 412 U.S. 218, 219
UNITED STATES V. TAYLOR 15
(1973). Police may search a car when they are given
“voluntary,” “unequivocal[,] and specific” consent. United
States v. Basher, 629 F.3d 1161, 1167–68 (9th Cir. 2011).
The district court did not err in concluding that Taylor’s
consent was voluntary. We analyze the voluntariness of
consent based on “the totality of all the circumstances,”
Schneckloth, 412 U.S. at 227, with our precedents focusing
on five non-exclusive factors: “(1) whether defendant was in
custody; (2) whether the arresting officers had their guns
drawn; (3) whether Miranda warnings were given; (4)
whether the defendant was notified that [he] had a right not
to consent; and (5) whether the defendant had been told a
search warrant could be obtained.” Basher, 629 F.3d at 1168(quoting United States v. Patayan Soriano, 361 F.3d 494,
502 (9th Cir. 2004)). A defendant’s consent is not voluntary
“if his will has been overborne and his capacity for self-
determination critically impaired.” Schneckloth, 412 U.S. at
225 (quoting Culombe v. Connecticut, 367 U.S. 568, 602
(1961)).
Here, Taylor was not in custody, so no Miranda
warnings were given or required, see Berkemer v. McCarty,
468 U.S. 420, 440 (1984); officers did not have their guns
drawn; and the officers never threatened Taylor that a search
warrant could be obtained if he refused consent. These
factors all suggest that Taylor’s consent was voluntary. See
Basher, 629 F.3d at 1168. The government was not required
to prove that Taylor knew he had a “right to refuse consent”
as a “necessary prerequisite to demonstrating a ‘voluntary’
consent.” Schneckloth, 412 U.S. at 232–33. Even so, that
officers never informed Taylor he had a right not to consent
is at least a factor that weighs against voluntariness. See
Basher, 629 F.3d at 1168.
16 UNITED STATES V. TAYLOR
We have encountered a similar constellation of facts
before. In Basher, as here, officers asked for consent while
the suspect was not in custody, they did not have guns
drawn, and they made no mention of Miranda, search
warrants, or the suspect’s right to refuse consent. Id.Balancing those factors, we held consent to be voluntary. Id.We struck the same balance even earlier, in United States v.
Kim, 25 F.3d 1426, 1432 (9th Cir. 1994).
The balance of the factors here is substantially similar to
Basher and Kim. The district court also found—and the
bodycam footage bears out—that “the entire interaction was
calm[] and could even be described as friendly.” That
finding is not clearly erroneous. Nothing in the record
suggests that Taylor’s will was overborne. Schneckloth, 412
U.S. at 225–26.
Citing “racial disparities in the policing of America,”
Taylor argues that we should treat his consent as involuntary
because the officers are of a different race than him. We
reject this argument. As the district court found, although
tensions between officers and suspects “may be heightened
by personal experiences and other sociocultural factors,”
there was no evidence in this case that race affected the
voluntariness of Taylor’s consent.
Taylor’s consent was also unequivocal and specific, and
it included consent to search the interior of the car for guns.
A suspect may “unequivocal[ly] and specific[ally]” consent
by giving express permission, or consent can be inferred
from conduct, such as a head nod. See Basher, 629 F.3d at1167–68. Ultimately, the test “is that of ‘objective’
reasonableness—what would the typical reasonable person
have understood by the exchange between the officer and the
suspect?” Florida v. Jimeno, 500 U.S. 248, 251 (1991).
UNITED STATES V. TAYLOR 17
The district court did not err in finding that Taylor
unequivocally and specifically consented to a search of his
car for firearms. When Gariano asked if there were guns in
the car and then asked if he could “check,” Taylor
unambiguously responded, “it don’t matter to me.” In
context, a reasonable person would have understood Taylor
to be consenting to a search of the car for firearms in
locations where a gun might be concealed. See id. Taylor’s
suggestion that he was only consenting to officers walking
around the car and looking in the windows is not objectively
reasonable given the nature of the exchange. We thus hold
that the officers did not violate the Fourth Amendment when
searching Taylor’s car.
III
We lastly consider two sentencing issues. First, Taylor
challenges as unconstitutionally vague and overbroad
Standard Condition 12 of his supervised release, which
requires him to comply with a probation officer’s
instructions to notify others of the risks posed by his criminal
record. Although the parties dispute whether Taylor in his
plea agreement waived the right to appeal this issue, Taylor
concedes that our precedent forecloses his claim. See United
States v. Gibson, 998 F.3d 415, 423 (9th Cir. 2021).
Second, in its oral pronouncement of Taylor’s sentence,
the district court ordered that for his outpatient substance
abuse treatment and vocational services programs (Special
Conditions One and Six), Taylor “must pay the cost of the
program[s] based on [his] ability to pay.” But the written
judgment requires Taylor to pay the costs of these programs,
without referencing his ability to pay. “When there is a
discrepancy between an unambiguous oral pronouncement
of a sentence and the written judgment, the oral
18 UNITED STATES V. TAYLOR
pronouncement controls.” United States v. Fifield, 432 F.3d
1056, 1059 n.3 (9th Cir. 2005). The parties thus agree that
to resolve this discrepancy, we should remand to the district
court so it can conform the written judgment to its oral
pronouncement.
* * *
For the foregoing reasons, we affirm Taylor’s
conviction. As to Special Conditions One and Six, we
remand to the district court to conform the written judgment
to the orally pronounced sentence.
AFFIRMED in part; REMANDED in part.