United States v. Oscar Ballesteros ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 28 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50093
Plaintiff-Appellee, D.C. No.
3:18-cr-04457-LAB-1
v.
OSCAR BALLESTEROS, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, Chief District Judge, Presiding
Submitted May 5, 2020**
Pasadena, California
Before: GOULD and CHRISTEN, Circuit Judges, and HELLERSTEIN,*** District
Judge.
Defendant-Appellant Oscar Ballesteros was sentenced to 42 months of
imprisonment and three years of supervised release for transporting an illegal alien
*
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 Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
for financial gain and aiding and abetting such transportation, in violation of 8
U.S.C. §§ 1324(a)(l)(A)(ii), (a)(l)(A)(v)(II), and (a)(l)(B)(i). At the oral
pronouncement of sentence, the district court announced eight special conditions of
supervised release but said nothing about mandatory or standard conditions. The
written judgment of the court included the eight special conditions, expanding,
however, the oral pronouncement of Special Conditions Six and Seven, and also
incorporated the mandatory and standard conditions. Ballesteros appeals Special
Conditions Six and Seven, and the imposition of mandatory and standard
conditions.
We review de novo Ballesteros’ contention that conditions in the written
judgment conflicted with the oral pronouncement of sentence, since “[t]he actual
imposition of a sentence occurs at the oral sentencing, not when the written
judgment later issues.” United States v. Napier, 463 F.3d 1040, 1042 (9th Cir.
2006). We review de novo also whether the court gave sufficient notice of a
special condition of supervised release, but, if a defendant failed to object timely,
our review is for plain error. United States v. Dailey, 941 F.3d 1183, 1188 (9th
Cir. 2019). We review the substantive reasonableness of a condition of supervised
release for abuse of discretion. United States v. Watson, 582 F.3d 974, 981 (9th
Cir. 2009).
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At the oral pronouncement of sentence, the district court imposed Special
Condition Six, that Ballesteros “is certainly not to transport [people who are in the
country illegally] or have them in his automobile.” The written judgment
expanded this condition to require that Ballesteros “[n]ot transport, harbor or assist
undocumented aliens.” Ballesteros, citing Napier, argues that the prohibitions as
to harboring and assisting aliens should be vacated because they were not imposed
at sentencing, denying him the right to be present for the imposition of this part of
his sentence. See Napier, 463 F.3d at 1042.
Ballesteros’ objection to “harboring” is denied. Harboring undocumented
aliens is a crime under 8 U.S.C. § 1324(a)(1)(A)(iii). A mandatory condition
required in every sentence is that defendant “not commit another federal, state or
local crime.” 18 U.S.C § 3583(d); Napier, 463 F.3d at 1042-43. Thus, the
prohibition against harboring undocumented aliens was a proper condition.
In contrast, “assisting” undocumented aliens is a broad concept that extends
beyond criminal activity. It could prohibit a multitude of daily activities, for
example, assisting an elderly undocumented alien with grocery shopping, giving a
lift to an undocumented alien whose car broke down, etc. The condition is not
reasonably related to the goal of deterrence, protection of the public, or
rehabilitation of the offender, and imposes a greater deprivation of liberty than is
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reasonably necessary for the purposes of supervised release. United States v.
Rearden, 349 F.3d 608, 618 (9th Cir. 2003); see also 18 U.S.C. § 3553(a). The
condition is vacated.
The district court, over defense counsel’s objection, imposed a special
condition, Special Condition Seven, that Ballesteros “not . . . knowingly associate
with people who are in the country illegally.” The written judgment stated the
condition as requiring that Ballesteros “[n]ot associate with undocumented aliens
or alien smugglers.”
We agree with Ballesteros that the prohibition against associating with
“people who are in the country illegally,” or who are “undocumented aliens,” is
too broad and ambiguous to serve the purposes of supervised release, and that the
condition imposes a greater deprivation of liberty than is reasonably necessary.
Rearden, 349 F.3d at 618. Ballesteros is likely to encounter many undocumented
aliens with whom he could otherwise have beneficial and lawful relationships. We
vacate that condition, as pronounced by the district judge. Because it is vacated,
we need not consider Ballesteros’ argument that its imposition was procedurally
improper due to insufficient notice.
As stated in the judgment, Special Condition Seven also prohibits
associating with “alien smugglers.” Defendant argues that since this condition was
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not mentioned by the district judge, its inclusion in the written judgment conflicts
with the oral pronouncement. This portion of Special Condition Seven is
consistent with Standard Condition Eight. Standard Condition Eight prohibits
Defendant from “interact[ing] with someone [he] know[s] is engaged in criminal
activity,”1 and alien smuggling is a crime, 8 U.S.C. § 1324(a)(2). The special
condition implements the standard condition, and is reasonably related to the goals
of supervised release, and so the portion of Special Condition Seven prohibiting
interaction with alien smugglers is affirmed. However, as we stated above, the
portion of the judgment that forbids “associating with undocumented aliens” is
overbroad and ambiguous, and is vacated.
The mandatory and standard conditions are “implicit in an oral sentence
imposing supervised release.” Napier, 463 F.3d at 1043. Where a district court
describes only special conditions of supervised release, a defendant should not
understand that the mandatory and standard conditions are excluded. The
1
The Guidelines provide:
The defendant shall not communicate or interact with someone the
defendant knows is engaged in criminal activity. If the defendant
knows someone has been convicted of a felony, the defendant shall
not knowingly communicate or interact with that person without first
getting the permission of the probation officer.
U.S.S.G. § 5D1.3(c)(8). The recitation of the condition in the written judgment is
virtually identical.
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mandatory conditions, by statute, must be imposed. See 18 U.S.C § 3583(d)
(providing that “[t]he court shall order, as an explicit condition of supervised
release,” certain enumerated conditions); United States v. Harvey, 794 F. Supp. 2d
1103, 1105 (S.D. Cal. 2011) (“Under federal law, courts must impose certain
mandatory conditions when imposing a term of supervised release after
imprisonment.”).2 Therefore, they are affirmed.
The standard conditions are also implicit in every sentence imposing
supervised release. Napier, 463 F.3d at 1043 (inferring imposition of standard
conditions where oral sentence advised defendant that unspecified conditions
would be included in judgment). Generally, they specify defendants’ obligations
to their probation officers, prohibit “own[ing], possess[ing], or hav[ing] access to a
firearm, ammunition, destructive device, or dangerous weapon”, and otherwise
expand on the mandatory conditions. U.S.S.G. § 5D1.3(c). The standard
conditions are “recommended to the extent that they serve the purposes of
sentencing.” United States v. Evans, 883 F.3d 1154, 1162 n.4 (9th Cir. 2018). As
we held in Napier, “[i]t is . . . better practice to advise the defendant orally, at least
in summary fashion, of the standard conditions.” 463 F.3d at 1043. However, the
2
The mandatory conditions require Ballesteros to refrain from committing another
crime, refrain from unlawfully possessing or using a controlled substance, and
submit to drug testing.
6 19-50093
district judge’s failure to itemize the standard conditions does not create a conflict
with the written judgment. See id. The mandatory and standard conditions in the
written judgment may serve to clarify the sentence. See Green v. United States,
447 F.2d 987, 987 (9th Cir. 1971) (per curiam) (“That the sentence in writing
should be referred to in order to resolve ambiguities in the oral pronouncement is
well settled.”); see also United States v. Truscello, 168 F.3d 61, 62-64 (2d Cir.
1999) (cited with approval by Napier).
The district court failed to state which of the standard conditions fit
Ballesteros’ sentence, and why. We remand to the district court to do that,
consistent with this order. Cf. Napier, 463 F.3d at 1043-44 (vacating and
remanding where “we cannot say the inclusion of . . . conditions in the written
judgment created a direct conflict,” but “we do not have a complete and
unambiguous sentence to leave intact”).
Accordingly, we affirm that part of Special Condition Six that requires
Ballesteros to refrain from harboring undocumented aliens, and we vacate the part
of Special Condition Six that requires him to refrain from assisting undocumented
aliens. We vacate that part of Special Condition Seven that prohibits Ballesteros
from associating with undocumented aliens, and we affirm the part of Special
Condition Seven that prohibits him from associating with alien smugglers. We
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affirm the imposition of the mandatory conditions, and we remand to the district
court to state which of the standard conditions it believes should be imposed, and
why, in the exercise of the district judge’s discretion.
AFFIRMED in part, REVERSED and VACATED in part, and
REMANDED in part. The parties shall bear their own costs.
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