United States of America v. Elias Baca

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ELIAS BACA,
Defendant-Appellant.
No. 17-50164
D.C. No. 2:16-cr-00209-GW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Elias Baca appeals from the district court’s judgment and challenges a
special condition of supervised release imposed following his guilty-plea
conviction for being a felon in possession of a firearm and ammunition, in
violation of 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291.
* 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
AUG 20 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 2 --

2 17-50164
We vacate and remand to the district court to correct the judgment.
Baca contends that the written judgment is in conflict with the court’s oral
pronouncement of special condition of supervised release number three. The
government concedes, and we agree, that special condition number three in the
written judgment contains a restriction that was not included in the district court’s
oral pronouncement of sentence, namely the restriction that Baca “abstain from
using alcohol.” Accordingly, we vacate the judgment and remand for the district
court to conform the judgment with the oral pronouncement by striking the
prohibition on Baca’s use of alcohol from special condition of supervised release
number three.1 See United States v. Jones, 696 F.3d 932, 937-38 (9th Cir. 2012)
(vacating judgment and remanding for the district court to strike a residency
restriction that it did not include in its oral pronouncement of sentence); see also
United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006) (“[W]hen an oral
sentence is unambiguous, it controls over a written sentence that differs from it.”).
VACATED and REMANDED.
1 Special condition of supervised release number three also differs in other ways
from the oral pronouncement. However, Baca does not challenge these variances,
and we do not reach them here.

-- 2 of 2 --