United States of America v. Jose Antonio Milanez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE ANTONIO MILANEZ,
Defendant-Appellant.
No. 18-50349
D.C. No. 3:18-cr-00660-WQH
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted March 12, 2019**
Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
Jose Antonio Milanez appeals from the district court’s judgment and
challenges the three-year term of supervised release and five conditions of
supervised release imposed following his guilty-plea conviction for being a
removed alien found in the United States, in violation of 8 U.S.C. § 1326. We
* 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).
FILED
MAR 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and remand with
instructions.
Milanez contends that the district court procedurally erred by failing to
calculate the Guidelines range for the supervised release term and by providing an
insufficient explanation for its decision to impose a three-year term of supervised
release. Because Milanez did not object below to the district court’s failure to
calculate the Guidelines range, we review for plain error, see Rosales-Mireles v.
United States, 138 S. Ct. 1897, 1904-05 (2018), and conclude that there is none.
The Guidelines range for supervised release was correctly calculated in the
presentence report, which the district court stated that it had reviewed, and Milanez
has not shown a reasonable probability that he would have received a different
sentence had the district court expressly calculated the applicable Guidelines range.
See United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008). Furthermore, the
record shows that the district court considered Milanez’s mitigating arguments, and
adequately explained that a three-year term of supervised release was necessary as
an added deterrent in light of Milanez’s immigration history and the court’s
decision to impose a lower custodial sentence than Milanez had previously
received for the same offense. See U.S.S.G. § 5D1.1 cmt. n.5 (court should
consider imposing supervised release on a deportable alien when facts and
circumstances of a particular case show that supervised release would be an added

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deterrent).
The government concedes, and we agree, that conditions 4, 7, and 8 in the
written judgment conflict with the oral pronouncement of sentence, which did not
include these now-nonstandard conditions. See United States v. Napier, 463 F.3d
1040, 1042 (9th Cir. 2006). We thus remand and instruct the district court to strike
conditions 4, 7, and 8 from the written judgment. See United States v. Hicks, 997
F.2d 594, 597 (9th Cir. 1993). As the government also concedes, conditions 5 and
13 in the written judgment are unconstitutionally vague. See United States v.
Evans, 883 F.3d 1154, 1162-64 (9th Cir.), cert. denied, 139 S. Ct. 133 (2018). On
remand, the district court shall modify these conditions consistent with our opinion
in Evans.
AFFIRMED in part; REMANDED with instructions.

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