United States of America v. Jorge Molina-Madrid

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JORGE MOLINA-MADRID,
Defendant-Appellant.
No. 18-50069
D.C. No. 3:17-cr-01965-JLS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted October 22, 2018**
Before: SILVERMAN, GRABER, and GOULD, Circuit Judges.
Jorge Molina-Madrid appeals from the district court’s judgment and
challenges the three-year term of supervised release and a special condition
imposed following his guilty-plea conviction for attempted reentry of a removed
alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
* 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
OCT 29 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-50069
§ 1291, and we affirm but remand to correct the judgment.
Molina-Madrid contends that the district court procedurally erred by
imposing a three-year term of supervised release without calculating the supervised
release Guidelines range and by insufficiently explaining its decision to impose the
statutory maximum term of supervision on a deportable alien. We review for plain
error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010), and conclude that there is none. The government asked for a three-year
term as “an added measure of deterrence” in light of Molina-Madrid’s immigration
history and the court expressed similar concerns about the need to deter Molina-
Madrid from returning. On this record, we conclude that the court would have
imposed the same three-year term even absent the alleged errors. See U.S.S.G.
§ 5D1.1 cmt. n.5; United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).
Molina-Madrid next contends that the written judgment conflicts with the
district court’s oral pronouncement of sentence. Because the written special
condition contains two restrictions that were not pronounced orally, we remand to
the district court with instructions that it strike the following portion of the special
condition: “If deported, excluded or allowed to voluntary [sic] return to country of
origin, not reenter the United States illegally and report to the probation officer
within 24 hours of any reentry into the United States.” See United States v. Jones,
696 F.3d 932, 937-38 (9th Cir. 2012).
AFFIRMED; REMANDED to correct the judgment.

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