United States v. Garcia ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-30356
v.  D.C. No.
CR-04-00301-016-
ADRIAN GARCIA, MJP
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-30391
v.  D.C. No.
CR-04-00301-003-
IVAN TORRES, MJP
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee, No. 05-30415
v. D.C. No.
MIGUEL PLASCENCIA-ALVARADO,  CR-04-00301-007-
MJP
also known as Esteban Garcia-
Morales also known as Angel AMENDED
Caloca, OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
4125
4126 UNITED STATES v. GARCIA
Argued and Submitted
July 25, 2006
Submission Withdrawn October 31, 2006
Resubmitted November 1, 2007
Seattle, Washington
Filed November 19, 2007
Amended April 17, 2008
Before: J. Clifford Wallace, Kim McLane Wardlaw and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
4128 UNITED STATES v. GARCIA
COUNSEL
Mary Anne Royle, Vancouver, Washington, for defendant-
appellant Adrian Garcia.
Nancy L. Talner, Seattle, Washington, for defendant-appellant
Miguel Plascencia-Alvarado.
Jeffrey E. Ellis, Law Offices of Ellis, Holmes & Witchley,
PLLC, Seattle, Washington, for defendant-appellant Ivan Tor-
res.
John L. Lulejian (argued), Assistant United States Attorney,
and James M. Lord, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
UNITED STATES v. GARCIA 4129
Stephen R. Sady, Chief Deputy Federal Public Defender,
Portland, Oregon, and David M. Porter, Assistant Federal
Defender, Sacramento, California, for the amicus curiae
Ninth Circuit Federal Public and Community Defenders.
OPINION
FISHER, Circuit Judge:
This appeal requires us to consider several allegations of
sentencing error. We also must determine whether a district
court commits plain error by failing to explicitly set the maxi-
mum number of non-treatment related drug tests to which the
defendant will be exposed as a condition of supervised
release. Finally, we must evaluate whether a district court
commits plain error by imposing a financial disclosure condi-
tion on a defendant who has been convicted of a drug traffick-
ing offense and has a history of drug use. We affirm the
sentences imposed and hold that the district court did not
commit plain error by imposing either condition.
I. Background
Because the issues on appeal are exclusively related to sen-
tencing, we need not recount detailed facts of the underlying
criminal offenses to which the defendants pled guilty. Rather,
we explain only those facts relevant to our resolution of the
defendants’ allegations of sentencing error.
Adrian Garcia, Ivan Torres and Miguel Plascencia-
Alvarado were all involved in a large-scale drug trafficking
conspiracy in the Western District of Washington. After being
charged with various crimes, all three entered into Rule 11
written plea agreements. See Fed. R. Crim. P. 11(c)(1)(C).1
1
Rule 11(c)(1)(C) provides in part:
4130 UNITED STATES v. GARCIA
Garcia pled guilty to conspiracy to distribute less than 500
grams of cocaine in violation of 21 U.S.C. §§ 846 and
841(b)(1)(C); Plascencia-Alvarado pled guilty to conspiracy
to distribute methamphetamine and cocaine in violation of 21
U.S.C. §§ 846 and 841(b)(1)(C); and Torres pled guilty to
conspiracy to distribute less than five grams of methamphet-
amine and less than 50 grams of a mixture containing
methamphetamine in violation of 21 U.S.C. §§ 846 and
841(b)(1)(C), as well as witness tampering in violation of 18
U.S.C. § 1513(b)(2). In accordance with their respective plea
agreements, Garcia was sentenced to 48 months imprisonment
and Plascencia-Alvarado was sentenced to 60 months impris-
onment. Torres was sentenced to 66 months imprisonment,
also pursuant to his plea agreement, and is subject to various
supervised release conditions. Garcia and Plascencia-
Alvarado appeal their sentences, and Torres appeals the dis-
trict court’s imposition of certain supervised release condi-
tions.
A. Garcia and Plascencia-Alvarado
Garcia’s and Plascencia-Alvarado’s plea agreements are
nearly identical in all material respects. In both plea agree-
ments, the defendants accepted that the maximum statutory
penalty for their offenses is 20 years imprisonment, waived
their right to a trial and agreed that the district court “will con-
sider the factors set forth in Title 18, United States Code, Sec-
An attorney for the government and the defendant’s attorney . . .
may discuss and reach a plea agreement. . . . If the defendant
pleads guilty or nolo contendere to either a charged offense or a
lesser or related offense, the plea agreement may specify that an
attorney for the government will . . . agree that a specific sen-
tence or sentencing range is the appropriate disposition of the
case, or that a particular provision of the Sentencing Guidelines,
or policy statement, or sentencing factor does or does not apply
(such a recommendation or request binds the court once the court
accepts the plea agreement).
UNITED STATES v. GARCIA 4131
tion 3553(a), including the sentencing range calculated under
the United States Sentencing Guidelines” but “is not bound by
any recommendation regarding the sentence to be imposed, or
by any calculation or estimation of the Sentencing Guidelines
range offered by the parties, or by the United States Probation
Department.” Garcia agreed that “the appropriate sentence of
imprisonment to be imposed by the Court at the time of sen-
tencing should be within the range of twenty-four (24) to
forty-eight (48) months,” and Plascencia-Alvarado agreed that
the appropriate sentence in his case was “fifty-four (54) to
ninety (90) months.” In light of these stipulated sentencing
ranges, the parties acknowledged that “the Court retains full
discretion to impose a sentence within the range agreed to
above.” (Emphasis added.)
At sentencing, the district court accepted Garcia’s plea
agreement and calculated the advisory guidelines range.2 In so
doing, the court, over Garcia’s objection, attributed to him
“the amount of cocaine that the Garcia arm of this organiza-
tion was responsible for,” which was nearly five kilograms.
The district court also granted Garcia a three-point reduction
for acceptance of responsibility, and adjusted downward the
Presentence Report’s criminal history calculation. After
rejecting Garcia’s request for a two-point reduction for his
minor role in the offense, the district court arrived at a guide-
lines recommended range of 97 to 121 months. However,
because the district court had accepted the plea agreement,
Garcia was ultimately sentenced to 48 months imprisonment.3
Garcia appeals this sentence, arguing that the district court
erred in calculating the guidelines range because it applied the
2
During sentencing, the district court acknowledged that its guidelines
calculation “appear[ed] academic . . . because [the court was] going to
accept the 11(c)(1)(C) plea agreement.”
3
In justifying its sentence at the high end of the stipulated range, the dis-
trict court explained that the sentence was lower than the guidelines range,
was “consistent with others who were” involved in similar offenses arising
out of the conspiracy, reflected the quality of Garcia’s cooperation with
the government and served to deter others from criminal conduct.
4132 UNITED STATES v. GARCIA
wrong burden of proof with respect to the drug quantity attri-
buted to Garcia. Had the district court applied the correct evi-
dentiary standard, Garcia argues, it would have arrived at a
lower guidelines calculation and he would have received a 24-
month sentence.
As with Garcia, the district court accepted Plascencia-
Alvarado’s plea agreement and calculated his advisory guide-
lines range to be 108 to 135 months imprisonment.
Plascencia-Alvarado argued to the district court that he should
receive a 54-month sentence (at the low end of the plea agree-
ment stipulation) because of various equities he believed were
in his favor, including his relationship with his young daugh-
ter. He further claimed that other similarly situated defendants
received comparable sentences. The district court rejected
these arguments and sentenced Plascencia-Alvarado to 60
months imprisonment (still at the lower end of his plea agree-
ment’s stipulated range).4 Plascencia-Alvarado appeals this
sentence as unreasonable in light of the 18 U.S.C. § 3553(a)
factors.
B. Torres
Torres’ plea agreement stipulated to a fixed sentence of 66
months and acknowledged “that the Court retains full discre-
tion with regard to the imposition of a term of supervised
release, the conditions of supervised release, fines, forfeiture
or restitution.” At sentencing, the district court accepted the
Rule 11 plea agreement and sentenced Torres to the agreed
upon term. The district court also imposed several conditions
of supervised release, including that Torres (1) “shall submit
to one drug test within 15 days of release from imprisonment
and at least two periodic drug tests thereafter, as determined
4
The district court judge explained that Plascencia-Alvarado’s sentence
reflected his role in the conspiracy, was comparable to that imposed upon
others charged with similar conduct and accounted for his contrition and
lack of prior drug trafficking offenses.
UNITED STATES v. GARCIA 4133
by the court;” (2) “shall submit to mandatory drug testing pur-
suant to 18 U.S.C. § 3563(a)(5) and 18 U.S.C. § 3583(d)”
(drug testing condition); and (3) “shall provide his probation
officer with access to any requested financial information,
including authorization to conduct credit checks and obtain
copies of defendant’s Federal Income Tax Returns” (financial
disclosure condition). Although Torres did not object to these
conditions at sentencing, he now argues that the district court
erred in imposing them.
II. Analysis
A. Garcia and Plascencia-Alvarado5
As an initial matter, the government argues that we lack
jurisdiction to review these defendants’ sentences because
they each received a sentence within the range stipulated to in
their plea agreements. We disagree. First, neither Garcia nor
Plascencia-Alvarado expressly waived the right to appeal the
district court’s sentence. Cf. United States v. Joyce, 357 F.3d
921, 922-23 (9th Cir. 2004) (“A defendant’s waiver of his
appellate rights is enforceable if the language of the waiver
encompasses his right to appeal on the grounds raised, and if
the waiver was knowingly and voluntarily made. Plea agree-
ments are contracts between a defendant and the government,
and we generally construe ambiguous language in favor of the
defendant.”) (internal citations omitted). Second, “a valid
guilty plea does not deprive the court of jurisdiction.” United
States v. Castillo, 496 F.3d 947, 949 (9th Cir. 2007) (en
banc).
[1] On the merits, we affirm because the sentences imposed
by the district court were reasonable. The district court’s sen-
tencing decision was procedurally sound, so we consider the
substantive reasonableness of the sentence under a deferential
5
Because both Garcia’s and Plascencia-Alvarado’s challenges implicate
the same dispositive issues, we address their claims jointly.
4134 UNITED STATES v. GARCIA
abuse-of-discretion standard. Gall v. United States, 552 U.S.
___, 128 S. Ct. 586, 591 (2007). The district court correctly
calculated the guidelines ranges for Garcia and for Plascencia-
Alvarado, considered all of the 18 U.S.C. § 3553(a) factors
and documented its reasoning. The court imposed sentences
that were within the ranges stipulated to in their respective
plea agreements and were below the statutory maximums.
Garcia’s contention that the district court applied the incorrect
burden of proof with respect to the drug quantity attributed to
him is without merit. The district court applied the proper bur-
den of proof for factual findings used for sentencing — spe-
cifically, the preponderance of the evidence standard. See
United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir. 2006).
Plascencia-Alvarado’s contention that his sentence is unrea-
sonable in light of the § 3553(a) factors is also without merit.
The district court considered those factors and the record does
not establish that the district court abused its discretion in so
doing. See Gall, 552 U.S. ___.
B. Torres
Torres challenges the district court’s imposition of both the
drug testing and financial disclosure conditions. As to drug
testing, Torres argues that the district court erred in failing to
specify the maximum number of non-treatment drug tests,
thereby impermissibly delegating that authority to Torres’
probation officer. See United States v. Stephens, 424 F.3d
876, 881 (9th Cir. 2005) (holding that “a probation officer
may not decide the . . . extent of the punishment imposed,”
because “[u]nder our constitutional system the right to . . .
impose the punishment provided by law is judicial” (alteration
in original) (internal quotation marks and punctuation omit-
ted)). Torres also argues that the district court abused its dis-
cretion in imposing the financial disclosure condition because
it is not “reasonably related to the crime of conviction.”
We generally defer to the district court in imposing super-
vised release conditions and review them for an abuse of dis-
UNITED STATES v. GARCIA 4135
cretion. United States v. Johnson, 998 F.2d 696, 697 (9th Cir.
1993). Because Torres did not object to the conditions of his
supervised release before the sentencing court, however, we
review for plain error. See Stephens, 424 F.3d at 879 n.1. We
conclude there was no error, much less plain error, in the dis-
trict court’s sentence.
1. Drug Testing Condition
[2] The district court directed Torres to “submit to one drug
test within 15 days of release from imprisonment and at least
two periodic drug tests thereafter, as determined by the court”
and to “submit to mandatory drug testing pursuant to 18
U.S.C. § 3563(a)(5) and 18 U.S.C. § 3583(d).”6 Although rec-
itation of this boilerplate drug testing language established the
minimum number of drug tests to which Torres would be sub-
ject, it does not appear to establish a maximum number of
such tests. However, as we held in Stephens, “the [sentencing]
courts [have] the responsibility of stating the maximum num-
ber of [drug] tests to be performed or to set a range for the
permissible number of tests.” 424 F.3d at 883 (concluding
that “while the district court itself determined the minimum
number of tests to which [the defendant] would be required to
submit, the court erred when it failed to state the maximum
number of non-treatment drug tests the probation officer
could impose”). Unlike in Stephens, where the district court
expressly delegated the authority to set a maximum number
of non-treatment drug tests to the probation officer, id. at 882,
in this case the district court made no such delegation. None-
6
18 U.S.C. § 3563(a)(5) applies to drug testing conditions of probation,
whereas § 3583(d) applies to a condition of supervised release. Both statu-
tory sections provide that courts shall order
as an explicit condition of [probation or supervised release,] that
the defendant refrain from any unlawful use of a controlled sub-
stance and submit to [a] drug test within 15 days of release on
[probation or supervised release] and at least 2 periodic drug tests
thereafter (as determined by the court) for use of a controlled
substance.
4136 UNITED STATES v. GARCIA
theless, because the district court did not set a maximum, Tor-
res reasonably argues that the probation officer could be
understood as having this authority, which would clearly vio-
late Stephens.
[3] In United States v. Maciel-Vasquez, 458 F.3d 994 (9th
Cir. 2006), cert. denied, 127 S. Ct. 2097 (2007), the defendant
challenged a drug testing condition of supervised release that
required him to “participate in outpatient substance abuse
treatment and submit to drug and alcohol testing as instructed
by the probation officer.” Id. at 996 (internal quotation marks
omitted). We observed that this condition would be permissi-
ble if imposed incidental to a drug treatment program, but
would be improper under Stephens if it were to be understood
as granting “the probation officer authority to require testing
apart from any treatment program.” Id. However, we refused
to determine the purpose of the drug testing because the
defendant did not object at sentencing and could not establish
any plain error. Id. Unlike in Maciel-Vasquez, the government
here concedes that “the Probation Office may conduct only
the minimum three tests allowed for in the order.” Indeed, it
is clear that district courts that seek to impose more than the
statutory minimum of three drug tests must explicitly do so at
sentencing. See United States v. Lewandowski, 372 F.3d 470,
471 (1st Cir. 2004) (per curiam). Given the government’s
concession, we construe the district court’s supervised release
condition as implicitly limiting the maximum number of drug
tests to three. Torres must submit to at least and at most “one
drug test within 15 days of release from imprisonment and . . .
two periodic drug tests thereafter.” Should the probation
office believe more drug tests are necessary, it would have to
request a modification from the district court. Any such modi-
fication would of course have to comply with Stephens. Thus
construed, there is no error in the district court’s drug testing
condition.
UNITED STATES v. GARCIA 4137
2. Financial Disclosure Condition
[4] District courts are encouraged to impose a financial dis-
closure condition when they require a defendant to pay resti-
tution. See U.S.S.G. § 5D1.3(d)(3) (instructing that where
“the court imposes an order of restitution, forfeiture, or notice
to victims, or orders the defendant to pay a fine,” it should
also impose “a condition requiring the defendant to provide
the probation officer access to any requested financial infor-
mation”). However, a district court may impose such a condi-
tion even without ordering restitution, so long as the condition
satisfies certain criteria.7 First, it must be “reasonably related
to the factors set forth in 18 U.S.C. § 3553(a).” United States
v. Gallaher, 275 F.3d 784, 793 (9th Cir. 2001); see also
United States v. Brown, 402 F.3d 133, 137 (2d Cir. 2005)
(“[T]he Guidelines recommend a financial disclosure special
condition where the court imposes a fine or restitution. By its
own terms, however, this policy statement does not preclude
a court from requiring financial disclosure in other ‘appropri-
ate’ situations.”) (internal citation omitted)). Second, it must
“involve no greater deprivation of liberty than is reasonably
necessary. . . .” United States v. Fellows, 157 F.3d 1197, 1204
(9th Cir. 1998). Finally, the condition “must be consistent
with pertinent policy statements of the Sentencing Commis-
sion.” Id.
[5] The financial disclosure requirement imposed on Torres
satisfies all three criteria, and the district court did not commit
plain error by imposing the condition. Torres was involved in
a large scale drug conspiracy as a drug supplier. Torres also
has a history of drug abuse. Clearly, if Torres is receiving or
spending significant funds in suspicious ways, the probation
office would have reason to believe he has reengaged with
drug trafficking or use and would so report to the district
7
Moreover, contrary to Torres’ argument otherwise, the condition need
not “be related to the offense of conviction.” United States v. Wise, 391
F.3d 1027, 1031 (9th Cir. 2004).
4138 UNITED STATES v. GARCIA
court. Requiring Torres to disclose financial information, at
the very least, reflects appreciation of “the nature and circum-
stances of the offense and [his] history and characteristics”
and serves “to protect the public from further crimes.” 18
U.S.C. §§ 3553(a)(1), (a)(2)(C). And the probation office’s
monitoring is no greater than necessary to achieve these ends.
[6] We join our sister circuits in concluding that certain
defendants who have been convicted of drug trafficking
offenses may properly be required to disclose the details of
their personal finances as a condition of supervised release.
See Brown, 402 F.3d at 137 (affirming financial disclosure
condition imposed on defendant convicted of drug trafficking
in part because “given this particular defendant’s personal
characteristics and history, the financial disclosure require-
ment is an effective monitoring — and hence deterring —
device” and because “monitoring [the defendant’s] finances
will . . . serve to protect the public from ‘further crimes of the
defendant’ ”) (quoting 18 U.S.C. § 3553(a)(2)(C)); United
States v. Melendez-Santana, 353 F.3d 93, 107 (1st Cir. 2003)
(affirming financial disclosure condition imposed on a simi-
larly situated defendant because it is related to the characteris-
tics of the defendant and deters future criminal conduct),
overruled on other grounds by U.S. v. Padilla, 415 F.3d 211
(1st Cir. 2005) (en banc); United States v. Behler, 187 F.3d
772, 780 (8th Cir. 1999) (affirming financial disclosure condi-
tion because “the district court understood that money and
greed were at the heart of [the defendant’s] drug distribution
offenses and believed that monitoring [the defendant’s] finan-
cial situation would aid in detecting any return to his former
lifestyle of drug distribution”). Therefore the district court did
not plainly err in imposing this condition.
III. Conclusion
Garcia’s and Plascencia-Alvarado’s sentences are
AFFIRMED. Torres’ sentence (including the conditions of
supervised release) is AFFIRMED.