United States v. Darren Quesada

FILED
NOT FOR PUBLICATION
JAN 27 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10501
Plaintiff-Appellee, D.C. No. 3:11-cr-08088-NVW-1
v.
MEMORANDUM*
DARREN QUESADA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted January 13, 2017
San Francisco, California
Before: WALLACE, CLIFTON, and M. SMITH, Circuit Judges.
Defendant Darren Quesada appeals from his judgment in which he received
a sentence of three years’ imprisonment, followed by 136 months of supervised
release, and challenges eight supervised release conditions. We have jurisdiction
under 18 U.S.C. § 1291. We affirm the sentence and supervised release conditions,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
but remand for the limited purpose of conforming the written judgment regarding
Special Condition Six with the district court’s oral pronouncement.
The district court did not impose a lengthy prison sentence for the purpose
of enabling the Defendant to complete a treatment program, in violation of 18
U.S.C. § 3582(a) and the Supreme Court’s decision in Tapia v. United States, 564
U.S. 319 (2011). Unlike in Tapia, where the court stated it sentenced the defendant
“so she [wa]s in long enough to get the 500 Hour Drug Program,” the court here
did not evaluate the sentence length required to qualify for treatment programs, or
state that the Defendant’s sentence was designed to afford him eligibility for those
programs. Tapia, 564 U.S. at 334. Although the court stated that it could “make the
circumstances a lot more conducive to actually participating and benefitting” in a
treatment program, “[a] court commits no error by discussing the opportunities for
rehabilitation within prison or the benefits of specific treatment or training
programs.” Id. The court repeatedly stated that it imposed the sentence “to show an
appropriate measured consequence for the extraordinary breaches of trust,” and to
protect others from the risk the Defendant posed.
The sentence length was not substantively unreasonable. In light of the
Defendant’s criminal history–involving the commission of several similar crimes
against similar victims–the revocations of supervision in his 1999 case, and the two
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revocations in the current case, there is support in the record for the district court’s
conclusion that the Defendant represented a danger to his community, and that his
repeated violations of supervised release warranted imposition of a more
substantial term. These rationales support an upward departure from the Guidelines
range. See United States v. Musa, 220 F.3d 1096, 1101 (9th Cir. 2000) (holding
that a sentencing court did not abuse its discretion in departing from the Guidelines
range when the record supported the court’s conclusion that the defendant was a
“danger to the community,” because he had been convicted of a crime that
“involved a threat against another person”); United States v. Leonard, 483 F.3d
635, 637 (9th Cir. 2007) (affirming a sentence that fell above the Guidelines range
when the defendant’s previous term of supervised release had been revoked
because he failed to refrain from illegal drug use and stay employed).
The district court did not err in imposing the eight identified supervised
release conditions. The conditions are appropriate given the facts and
circumstances of the case, and are “reasonably related to the goals of deterrence,
protection of the public, or rehabilitation of the offender.” United States v. Watson,
582 F.3d 974, 982 (9th Cir. 2009). With no controlling precedent reversing the
standard and commonly imposed conditions on the grounds of vagueness or
overbreadth at the time the district court issued its decision, the district court did
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not plainly err in imposing these conditions. See United States v. Gnirke, 775 F.3d
1155, 1164 (9th Cir. 2015) (quoting United States v. Gonzalez-Aparicio, 663 F.3d
419, 428 (9th Cir. 2011)) (“An error ‘cannot be plain where there is no controlling
authority on point and where the most closely analogous precedent leads to
conflicting results.’”). If the conditions are no longer relevant as the period of
supervised release approaches, the Defendant may file a motion to modify the
conditions pursuant to 18 U.S.C. § 3583(e)(2).
Finally, we remand for the limited purpose of remedying discrepancies
between the written order regarding Special Condition Six and the district court’s
oral pronouncement. Where, as is the case here, there is a “direct conflict” between
an oral pronouncement of a sentence and a written order, the oral pronouncement
controls. United States v. Hicks, 997 F.2d 594, 597 (9th Cir. 1993). We remand so
that the district court can make the written judgment consistent with the oral
pronouncement.
AFFIRMED; WRITTEN JUDGMENT VACATED AND REMANDED
TO CONFORM WITH ORAL PRONOUNCEMENT.
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