United States of America v. FRANCISCO JAVIER HERNANDEZ- BARRERAS, AKA Francisco Hernandez- Barreras

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
FRANCISCO JAVIER HERNANDEZ-
BARRERAS, AKA Francisco Hernandez-
Barreras,
Defendant-Appellant.
No. 20-10086
D.C. No.
2:19-cr-01322-GMS-1
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, Chief District Judge, Presiding
Argued and Submitted February 5, 2021
Phoenix, Arizona
Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.
Francisco Hernandez-Barreras challenges the district court’s imposition of
supervised release and standard conditions following his conviction for illegal
reentry in violation of 8 U.S.C. § 1326. We have jurisdiction under 18 U.S.C.
§ 3742(a) and 28 U.S.C. § 1291. We affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. The district court did not abuse its discretion by imposing supervised
release. The district court’s application of the Sentencing Guidelines to the facts of
the case is reviewed for abuse of discretion. United States v. Gasca-Ruiz, 852 F.3d
1167, 1170 (9th Cir. 2017) (en banc). A district court “ordinarily should not impose
a term of supervised release” where the defendant “likely will be deported after
imprisonment.” U.S.S.G. § 5D1.1(c). However, a district court may impose
supervised release if it gives “a specific and particularized explanation that
supervised release would provide an added measure of deterrence and protection
based on the facts of [the defendant’s] case.” United States v. Valdavinos-Torres,
704 F.3d 679, 693 (9th Cir. 2012). Here, the district court considered Hernandez-
Barreras’s case and explained why a term of supervised release was “warranted
under the circumstances.” This was not an abuse of discretion.
2. The district court did not plainly err in imposing standard conditions of
supervised release. Hernandez-Barreras argues for the first time on appeal that the
district court erred by imposing standard conditions “that are unclear, and in some
cases impossible to comply with, for a supervisee who has been deported.” Because
he failed to raise this issue to the district court, we review for plain error. United
States v. Tapia, 665 F.3d 1059, 1061 (9th Cir. 2011). To demonstrate plain error,
Hernandez-Barreras must show that the error he asserts “is so clear-cut, so obvious,
a competent district judge should be able to avoid it without benefit of objection.”

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Claiborne v. Blauser, 934 F.3d 885, 898 (9th Cir. 2019) (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.” United States v. Wijegoonaratna,
922 F.3d 983, 991 (9th Cir. 2019) (internal quotation marks and citation omitted).
Assuming without deciding that there was error, Hernandez-Barreras has not shown
that the error was plain.
AFFIRMED.

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