United States v. Rachel Ruvalcaba-Morales

FILED
NOT FOR PUBLICATION
JUN 14 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50563
Plaintiff-Appellee, D.C. No.
3:13-cr-04514-BEN-9
v.
RACHEL RUVALCABA-MORALES, MEMORANDUM*
aka Rachel Morales, aka Rachel
Ruvalcaba,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted June 6, 2017**
Pasadena, California
Before: GRABER, SACK,*** and MURGUIA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Robert D. Sack, United States Circuit Judge for the Court
of Appeals for the Second Circuit, sitting by designation.
Defendant Rachel Ruvalcaba-Morales pleaded guilty to one RICO count and
one count of conspiracy to distribute controlled substances. She appeals her
below-Guidelines sentence, the fine imposed, and a condition of supervised
release. Because the issues raised on appeal were not presented to the district
court, we review for plain error. United States v. Herrera-Rivera, 832 F.3d 1166,
1172 (9th Cir. 2016); United States v. Miqbel, 444 F.3d 1173, 1176 (9th Cir.
2006); Fed. R. Crim. P. 52(b).
1. The district court did not plainly err by applying a two-level sentencing
enhancement for importation of methamphetamine. Any error did not affect the
outcome of the sentencing proceeding, Puckett v. United States, 556 U.S. 129, 135
(2009), because the court made clear that it based the selected sentence on factors
independent of the Guidelines, Molina-Martinez v. United States, 136 S. Ct. 1338,
1346 (2016).
2. The district court did not plainly err in addressing Defendant’s mitigation
arguments at sentencing. Indeed, because the court listened to and addressed on
the record the mitigation arguments that Defendant made, the court did not err at
all.
3. The district court did not plainly err in imposing a $1,000 fine. From the
court’s explanation at sentencing, it is clear that the court considered the
2
Guidelines, the 18 U.S.C. § 3553(a) factors, and the fine-specific factors set forth
in 18 U.S.C. § 3572(a). See United States v. Orlando, 553 F.3d 1235, 1239 (9th
Cir. 2009) (noting requirement to consider all three sets of factors). And the court
explained its decision sufficiently to allow for meaningful appellate review. Id.
The reasons that the court gave were permissible, and the court did not have to list
every factor. United States v. Hurtado, 760 F.3d 1065, 1069 (9th Cir. 2014).
4. Finally, the parties, and we, agree that one condition of supervised release
is impermissibly vague and overbroad. The condition is that Defendant "shall not
associate with any member, prospect, or associate of the Mexican Mafia gang or
any other gang or club with a history of criminal activity." Two aspects of that
condition are problematic under our precedents, United States v. Soltero, 510 F.3d
858 (9th Cir. 2007) (per curiam), and United States v. Johnson, 626 F.3d 1085 (9th
Cir. 2010). The terms "club with a history of criminal activity" and "associat[ing]
with any . . . prospect, or associate of the Mexican Mafia gang or any other gang or
club with a history of criminal activity" do not adequately instruct the average
person as to what is forbidden. (Emphasis added.) We therefore vacate this
condition with instructions to enter a modified condition that Defendant "shall not
associate with any known member of the Mexican Mafia gang or any other gang
with a history of criminal activity."
3
AFFIRMED in part; VACATED and REMANDED in part, with
instructions.
4