United States of America v. Jesus Rodriguez-Rodriguez, a/k/a No. 05-50202 Jesus Rodriguez, Joe Oraz D.C.…

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JESUS RODRIGUEZ-RODRIGUEZ, a/k/a No. 05-50202
Jesus Rodriguez, Joe Oraz D.C. No.Gutierrez, Jesus Mendoza, Jose  CR-04-00078-DSFLuis Alvarez Mendoza, Jesus
Rodriguez Rodrigez, Jesus OPINION
Mendoza Rodriguez, Jesus
Mendoza Rodriquiez and
“Shoney”,
Defendant-Appellant. 
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted February 10, 2006*
Pasadena, California
Filed March 22, 2006
Before: Robert R. Beezer, Thomas G. Nelson, and
Ronald M. Gould, Circuit Judges.
Opinion by Judge Beezer
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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COUNSEL
Kathryn A. Young, Deputy Federal Public Defender, Los
Angeles, California, for the defendant-appellant.
Michael R. Wilner, Assistant United States Attorney, Los
Angeles, California, for the plaintiff-appellee.
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OPINION
BEEZER, Circuit Judge:
Defendant Jesus Rodriguez-Rodriguez pleaded guilty to
one count of illegal reentry following deportation in violation
of 8 U.S.C. § 1326(a), b(2). The district court sentenced him
to a term of 77 months followed by three years supervised
release. One of the conditions of release requires Rodriguez-
Rodriguez to report to the probation office for instructions
within 72 hours of release from custody or reentry into the
United States. Rodriguez-Rodriguez appeals the sentence on
the grounds that it is unreasonable under United States v.
Booker, 543 U.S. 220 (2005), and that the reporting condition
violates his Fifth Amendment right against self-incrimination.
Because the sentence is reasonable and the reporting condi-
tion does not violate the Fifth Amendment, we affirm.
I
Rodriguez-Rodriguez was born in Mexico and brought to
the United States by his parents at the age of six months. His
parents and siblings all live in the United States; he attended
school in the United States, has worked in the United States
and considers the United States his home. He is not a citizen
of the United States, however, and has been deported on at
least six occasions.
In January 2004, Rodriguez-Rodriguez was found in a Los
Angeles county jail. The Government charged Rodriguez-
Rodriguez with three counts of illegal reentry following
deportation in violation of 8 U.S.C. § 1326(a), (b)(2). At his
plea hearing, he pleaded guilty to one count and stated he had
returned to the United States because his son was badly
injured and he wanted to see how he was doing. While in cus-
tody, Rodriguez-Rodriguez married a woman also in custody
for illegal reentry following deportation. His wife owns land
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in Mexico; Rodriguez-Rodriguez claims they intend to return
there to live and work after serving their sentences.
The pre-sentence report calculated a sentence range of 77-
96 months. The district court sentenced Rodriguez-Rodriguez
to 77 months in custody and a term of three years supervised
release subject to several conditions. One of these conditions
requires that “within 72 hours of release from any custody or
any reentry to the United States during the period of court-
ordered supervision, the defendant shall report for instructions
to the U.S. Probation Office . . . .” Rodriguez-Rodriguez
timely appeals.
II
Following United States v. Booker we review sentences
imposed by district courts within the suggested guideline
range for reasonableness. United States v. Plouffe, 436 F.3d
1062, 1063 (9th Cir. 2006); see also United States v. Ameline,
409 F.3d 1073, 1075 (9th Cir. 2005) (holding that if, on
remand, a district court determines a sentence imposed pursu-
ant to the guidelines would have been the same if it had
known the guidelines were advisory, “the original sentence
will stand[ ] subject to appellate review for reasonableness”).
Although Booker rendered the Sentencing Guidelines advi-
sory, district courts must “consult [the guidelines] and take
them into account when sentencing.” Booker, 543 U.S. at 264.
In determining an appropriate sentence, district courts must
consider the applicable guideline range, as well as the goals
and factors enumerated in 18 U.S.C. § 3553(a). United States
v. Cantrell, 433 F.3d 1269, 1279 (9th Cir. 2006). Section
3553(a) states that a district court should impose a sentence
“sufficient, but not greater than necessary” to “reflect the seri-
ousness of the offense, to promote respect for the law, and to
provide just punishment for the offense; to afford adequate
deterrence to criminal conduct; to protect the public . . . ; and
to provide the defendant with needed . . . training, medical
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care, or other correctional treatment . . . .” § 3553(a)(2). The
district court also should weigh factors such as “the nature
and circumstances of the offense and the history and charac-
teristics of the defendant;” “the kinds of sentences available;”
“the [applicable] sentencing range[;]” the articulated policy
goals of the guidelines; “the need to avoid unwarranted sen-
tence disparities” among similar defendants; and “the need to
provide restitution to any victims of the offense.”
§ 3553(a)(1), (3)-(7).
[1] Rodriguez-Rodriguez argues the sentence imposed on
him is unreasonable on several grounds. First, he argues the
district court relied on the fact that he has committed “numer-
ous serious and violent crimes,” when only one crime was
violent. The pre-sentence report indicates that Rodriguez-
Rodriguez has been convicted of grand theft auto, second
degree burglary, second degree robbery, being a felon in pos-
session of a firearm and being under the influence of a con-
trolled substance. The district court was not mistaken that at
the time of sentencing Rodriguez-Rodriguez had begun com-
mitting crimes over fifteen years earlier, several of which
were serious and one of which was drug related. The fact that
only one was violent (a conviction for second degree robbery
where Rodriguez-Rodriguez carjacked the victim by threaten-
ing him with a screwdriver) does not render the weight the
district court afforded his criminal history pursuant to
§ 3553(a)(1) unreasonable.
[2] Rodriguez-Rodriguez also argues that the district court
erroneously applied the pre-Booker standard for cultural
assimilation to its consideration pursuant to § 3553(a)(1). The
record belies this claim and rather demonstrates that the dis-
trict court considered Rodriguez-Rodriguez’s claim of cultural
assimilation fully cognizant that neither the guideline range
nor the pre-Booker standard for cultural assimilation were
binding. The district court stated, “[The] defendant correctly
argues that the guidelines are now only advisory and the
Court has significantly more freedom to sentence a defendant
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to less time in prison than might otherwise have been indi-
cated by the guidelines[ ]” and noted “[the cases discussing
cultural assimilation] still have some application, even though
the guidelines are now only advisory.” The district court
accepted as true Rodriguez-Rodriguez’s assertions about the
nature of his arrival and time spent in the United States, but
determined these factors were counterbalanced by his exten-
sive criminal history. This was not an unreasonable determi-
nation.
[3] Finally, the district court’s skepticism of Rodriguez-
Rodriguez’s proffered reason for returning to the United
States and his intention not to return again was also not unrea-
sonable. Although he often asserted he returned to the United
States out of concern for his son, Rodriguez-Rodriguez admit-
ted during the sentencing hearing that his son’s health was not
his sole reason for returning and referred again to his strong
cultural ties to the United States. The court also observed that
although Rodriguez-Rodriguez claims he and his wife plan to
settle in Mexico together, both arrived in the United States at
a young age and both have been convicted of illegal re-entry.
In light of these facts, the district court’s doubt regarding
Rodriguez-Rodriguez’s representations was reasonable.
[4] Considering the factors listed in § 3553(a), such as
Rodriguez-Rodriguez’s criminal history, the likelihood that he
would attempt re-entry and the sentence calculated under the
guidelines, the district court determined that a sentence of 77
months was “sufficient but no greater than necessary” to ful-
fill the goals of § 3553(a)(2). The district court did not act
unreasonably in imposing the sentence.1
1Because each argument advanced by Rodriguez-Rodriguez fails, we
need not decide today whether, in a case where one aspect of the district
court’s determination is unreasonable, that necessarily means the sentence
is unreasonable within the meaning of Booker.
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III
Rodriguez-Rodriguez also argues that the reporting condi-
tion violates his Fifth Amendment privilege against self-
incrimination. The government defends the condition on three
grounds: waiver, ripeness and the merits.
[5] Although Rodriguez-Rodriguez did not object to the
imposition of the reporting condition at his sentencing hear-
ing, his right to challenge it has not been waived. Waiver
must be distinguished from forfeiture. “Whereas forfeiture is
the failure to make the timely assertion of a right, waiver is
the ‘intentional relinquishment or abandonment of a known
right.’ ” United States v. Olano, 507 U.S. 725, 733 (1993)
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)). For-
feiture does not extinguish an error, and in the absence of
waiver, a forfeited error is subject to review. Id. at 733-34.
There is no evidence in the record that Rodriguez-Rodriguez
intended to relinquish or abandon his rights under the Fifth
Amendment. The error was forfeited, not waived, and the
reporting condition is subject to review. See United States v.
Perez, 116 F.3d 840, 842 (9th Cir. 1997) (en banc).2
[6] We hold that Rodriguez-Rodriguez’s challenge is ripe.
Ripeness doctrine requires that there exist a “ ‘case or contro-
versy’ ”and that “the issues presented are ‘definite and con-
crete, not hypothetical or abstract.’ ” Thomas v. Anchorage
Equal Rights Comm’n, 220 F.3d 1134, 1139 (9th Cir. 2000)
(en banc) (quoting Railway Mail Ass’n v. Corsi, 326 U.S. 88,
93 (1945)). The government argues Rodriguez-Rodriguez’s
challenge is not ripe because any injury to Rodriguez-
2Perez impliedly overruled in relevant part United States v. Whitten, 706
F.2d 1000, 1012 (9th Cir. 1983), the case that underlies the cases cited by
the Government for the proposition that Rodriguez-Rodriguez waived his
right to challenge the reporting condition. See Perez, 116 F.3d at 844-46
(discussing considerations relevant to determining whether an error has
been waived or forfeited).
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Rodriguez is hypothetical, as it depends on several contingen-
cies that have yet to occur, such as the completion of his 77-
month sentence, deportation and illegal return to the United
States. The reporting condition is a part of the district court’s
sentence, which is a final judgment subject to immediate
appeal. See 18 U.S.C. § 3742(a). We have “stated clearly that
‘a defendant may challenge the legality of a supervised
release condition [by] direct appeal.’ ” United States v. Wil-
liams, 356 F.3d 1045, 1051 (9th Cir. 2004) (quoting United
States v. Gross, 307 F.3d 1043, 1044 (9th Cir. 2002)). We do
not require the violation of a specified supervised release con-
dition before permitting appellate review. Id. Rodriguez-
Rodriguez asserts a facial challenge to a condition imposed
upon him at the time of his sentence. His claim is ripe for
review.
Because Rodriguez-Rodriguez failed to object to the report-
ing condition at the time of sentencing, we review for plain
error. Perez, 116 F.3d at 846; see also Ameline, 409 F.3d at
1078 (applying the plain error analysis to a Sixth Amendment
challenge of a sentence that was not raised at the time of sen-
tencing). “Plain error is ‘(1) error, (2) that is plain, and (3)
that affects substantial rights.’ ” Ameline, 409 F.3d at 1078
(quoting United States v. Cotton, 535 U.S. 625, 631 (2002)).
If the imposition of the condition is plain error, we will grant
relief if it “ ‘seriously affects the fairness, integrity, or public
reputation of judicial proceedings.’ ” Id. (quoting Cotton, 535
U.S. at 631).
[7] Rodriguez-Rodriguez argues the reporting condition
constitutes plain error because it creates a “classic penalty sit-
uation” as described in Minnesota v. Murphy, 465 U.S. 420,
434 (1984). A classic penalty situation arises when the state
compels an individual to appear and testify, and induces him
to forgo his Fifth Amendment privilege against self-
incrimination by threatening sanctions if he invokes it. Id.
Rodriguez-Rodriguez asserts the condition creates a penalty
situation because it compels him to report to the probation
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office thereby incriminating himself in a new violation of
§ 1326, and induces him to forgo his Fifth Amendment privi-
lege against self-incrimination by threatening the possible
revocation of his supervised release if he invokes it by failing
to report.
[8] The reporting condition does not create a classic penalty
situation because it does not require Rodriguez-Rodriguez to
incriminate himself. The Fifth Amendment grants persons the
privilege not to “provide the State with evidence of a testimo-
nial or communicative nature.” Schmerber v. California, 384
U.S. 757, 761 (1966). Rodriguez-Rodriguez’s presence at the
probation office does not communicate any information that
will necessarily subject him to prosecution. Section 1326
includes exceptions from prosecution for aliens who have
received consent to return to the United States from the Attor-
ney General. 8 U.S.C. § 1326(a)(2)(A). Because such an
exception exists, merely being present in the probation office
is not sufficient to incriminate him in a new violation of
§ 1326.
[9] To incriminate himself in a new violation of § 1326,
Rodriguez-Rodriguez would have to be present in the proba-
tion office illegally and he would have to admit as much to
the probation officer. The reporting condition does not com-
pel Rodriguez-Rodriguez to make such an admission. In Mur-
phy, the Supreme Court held that a probation condition
requiring the probationer to report to a probation officer and
“be truthful with the probation officer ‘in all matters’ ” does
not violate the Fifth Amendment because the condition does
not prohibit the probationer from refusing to respond to a
question if the answer is likely to incriminate him. 485 U.S.
at 422, 437. In United States v. Saechao, we distinguished the
situation in Murphy from one in which the probationer is
required to “answer ‘all reasonable inquiries.’ ” 418 F.3d
1073, 1078 (9th Cir. 2005). We held this condition does vio-
late the Fifth Amendment because, unlike the condition in
Murphy, the probationer is not permitted to invoke the privi-
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lege against self-incrimination without jeopardizing his super-
vised release. Id. Rodriguez-Rodriguez is not subject to a
condition like the one found impermissible in Saechao requir-
ing him to answer all reasonable inquiries; he is not even sub-
ject to a condition like the one found permissible in Murphy
requiring him to be truthful in all matters. Rodriguez-
Rodriguez is required only to report to the probation office for
instructions. If asked a question the answer to which is likely
to incriminate him, he is free to invoke his Fifth Amendment
privilege and refuse to respond. On its face, the reporting con-
dition does not violate his right against self-incrimination
under the Fifth Amendment and its imposition was not plain
error.
IV
Because the sentence imposed is reasonable under United
States v. Booker and the reporting condition does not violate
the Defendant’s Fifth Amendment right, we AFFIRM.
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