United States of America v. Christian Ruben Tirado

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CHRISTIAN RUBEN TIRADO,
Defendant-Appellant.
No. 21-50247
D.C. Nos.
3:20-cr-03314-TWR-1
3:20-cr-03314-TWR
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Todd W. Robinson, District Judge, Presiding
Argued and Submitted November 17, 2022
Pasadena, California
Before: TASHIMA and NGUYEN, Circuit Judges, and FITZWATER,** District
Judge.
Defendant-Appellant Christian Ruben Tirado (“Tirado”) pleaded guilty to an
information charging him with one count of importation of methamphetamine and one
count of importation of fentanyl, in violation of 21 U.S.C. §§ 952 and 960. The
FILED
JAN 6 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.

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district court sentenced him to 84 months of imprisonment and 4 years of supervised
release. Tirado challenges his sentence, contending that (1) the district court violated
his due process rights by relying on facts not supported by the record about the nature
and extent of his gang involvement, (2) the district court imposed an
unconstitutionally vague condition of supervised release that prohibited Tirado from
possessing gang-related paraphernalia without regard to whether it related to any gang
with which Tirado was ever associated and whether Tirado knew of the gang-related
properties, and (3) the district court impermissibly delegated its judicial function to
the probation officer by asking the officer to read into the record three conditions of
supervised release related to gangs that the parties had not reviewed.1 We have
jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, and we affirm.
1. Tirado contends that the district court violated his due process rights by
relying on facts not supported by the record about the nature and extent of his gang
involvement. Because the parties dispute the applicable standard of review and we
may affirm under a less deferential standard than plain error review, we will assume
arguendo that plain error review does not apply. Instead, Tirado may prevail on his
due process claim if he can show that the challenged information is “(1) false or
1 The record does not disclose whether the sentencing judge had reviewed, or
was aware of, the gang conditions.
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unreliable, and (2) demonstrably made the basis for the sentence.” United States v.
McGowan, 668 F.3d 601, 606 (9th Cir. 2012) (quoting United States v.
Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir. 2009)). “Challenged information
is deemed false or unreliable if it lacks ‘some minimal indicium of reliability beyond
mere allegation.’” Vanderwerfhorst, 576 F.3d at 936 (quoting United States v. Ibarra,
737 F.2d 825, 827 (9th Cir. 1984)). “[T]he Fifth Amendment guarantee of due
process protects the defendant from consideration of improper or inaccurate
information” at sentencing. United States v. Safirstein, 827 F.2d 1380, 1385 (9th Cir.
1987).
Tirado has failed to make the required showing. The presentence report
(“PSR”) referred to Tirado’s gang affiliation, noting that local law enforcement had
identified him as an active member of the El Cajon Dukes. The PSR recounted that,
according to San Diego County Sheriff’s records, Tirado was identified as an active
member with the El Cajon Dukes street gang, and his moniker is “Bones.”2 Tirado did
not file objections to the PSR. At sentencing, the district court directly asked Tirado’s
counsel to address the concern in the PSR about Tirado’s gang affiliation and how that
would impact his criminal history going forward. His attorney conceded that at least
2 The PSR also acknowledged that no information was found identifying Tirado
as a current gang member.
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some of his criminal history was directly related to his gang affiliations. She focused
instead on what she viewed as the best way to address concerns about his past ties to
gangs: via the conditions of supervised release.3 Moreover, the PSR reflected that
Tirado had an extensive adult criminal history that placed him well above the number
of points required to fall within category VI, the highest criminal history category.
The extensiveness and nature of Tirado’s criminal history further enabled the district
court to draw reasonable inferences about the nature and extent of Tirado’s gang
membership and to account for it when imposing the sentence. Tirado has failed to
show that the inferences the district judge could have drawn from the record when
determining the sentence were unreasonable.
3 In response to the district court’s questions “How do you address the concern
in the presentence report about his gang affiliation? And how does that impact his
criminal history and going forward?” Tirado’s counsel stated:
Well, Your Honor, I don’t deny that there is criminal
history that’s related to that. I think that the best way to
address that in terms of going forward is with a condition
— the conditions of supervised release.
You know, custody isn’t what’s going to address his ties to
— his past ties to gangs. What’s going to address his past
ties to gangs is the decision to move away from them, to
stop using drugs and to go into a different path in life. So
I think that those are concerns that can be addressed with
the terms of supervised release.
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2. Tirado maintains that one of the gang-related conditions of supervised
release—prohibiting him from wearing, displaying, using, or possessing articles of
clothing, insignia, and other property “that are known to represent criminal street gang
affiliation, association with or membership in the ‘El Cajon Dukes’ criminal street
gang, or any other criminal street gang” without the probation officer’s permission—is
unconstitutionally vague. “We review the district court’s order of a supervised release
condition for abuse of discretion,” but we review de novo whether a condition of
supervised release violates the Constitution, United States v. Watson, 582 F.3d 974,
981 (9th Cir. 2009).
We have upheld conditions similar to the one challenged here. See, e.g., United
States v. Soltero, 510 F.3d 858, 865 (9th Cir. 2007) (per curiam) (upholding condition
that provided that the defendant “shall not associate with any known member of any
criminal street gang . . . , specifically, any known member of the Delhi street gang.”).
In Soltero, for example, we held that the term “criminal street gang” was not
impermissibly vague. Id. at 866-67, 867 n.9. In a footnote we “note[d] that [the
defendant] only violates the condition if the gang member he associates with is known
to him to be a gang member[.]” Id. at 867 n.9.
We have emphasized that the inclusion of a scienter element negates a valid
objection based on vagueness. See, e.g., United States v. Vega, 545 F.3d 743, 750 (9th
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Cir. 2008) (“We construe [the condition] consistent with well-established
jurisprudence under which we presume prohibited criminal acts require an element of
mens rea. Applying this presumption, we read the condition to prohibit knowing
association with members of a criminal street gang. So construed, the condition is not
impermissibly vague.”) (citations omitted)).
The condition challenged here likewise is not unconstitutionally vague. It
contains a scienter requirement: the restricted items, including clothing, insignia, and
other property, must be “known to represent criminal street gang affiliation,
association with or membership in the ‘El Cajon Dukes’ criminal street gang or any
other criminal street gang.” “[W]ith this limitation, ‘men of common intelligence’
need not guess at the meaning of” the condition. Soltero, 510 F.3d at 867.
3. Finally, Tirado contends that the procedure the district judge employed when
imposing the sentence—directing the probation officer to read supervised release
conditions into the record rather than pronouncing them himself—impermissibly
delegated the judge’s exclusive sentencing authority. Because Tirado did not
adequately preserve this procedural objection, see United States v. Hernandez, 251
F.3d 1247, 1250 n.3 (9th Cir. 2001), we review for plain error, United States v.
Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). “Plain error is (1) error, (2)
that is plain and (3) affects ‘substantial rights.’” United States v. Barsumyan, 517
6

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F.3d 1154, 1160 (9th Cir. 2008) (citing United States v. Olano, 507 U.S. 725, 732-34
(1993)). An error is “some sort of ‘[d]eviation from a legal rule.’” Puckett v. United
States, 556 U.S. 129, 135 (2009) (brackets in original) (quoting Olano, 507 U.S. at
732-33). And “‘[a]n error is plain if it is clear or obvious under current law.’” United
States v. Gonzalez Becerra, 784 F.3d 514, 518 (9th Cir. 2015) (quoting United States
v. De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003)).
Sentencing is an exclusively judicial function. See United States v. Stephens,
424 F.3d 876, 881 (9th Cir. 2005). And the judge must impose the nonstandard
conditions of supervised release orally, in the defendant’s presence. See United States
v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006). But we have never held that a judge
must personally recite each and every condition of supervised release when
pronouncing the sentence. Accordingly, without suggesting that a judge’s failure at
sentencing to orally pronounce a particular condition of supervised release can never
be reversible error, we hold that Tirado has failed to demonstrate plain error based on
the probation officer’s recitation of conditions (here, special gang conditions) that the
district judge, when orally pronouncing the sentence in the defendant’s presence,
directed the probation officer to “recite into the record.”
AFFIRMED.
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