United States of America v. Rufino Yuriar, a.k.a. Fino Yuriar

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RUFINO YURIAR, a.k.a. Fino Yuriar,
Defendant - Appellant.
No.15-50024
D.C. No. 2:13-cr-00918-ODW-2
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted May 2, 2016**
Pasadena, California
Before: M. SMITH and NGUYEN, Circuit Judges and WILKEN,*** Senior District
Judge.
Rufino Yuriar appeals the 51-month sentence he received after pleading
guilty to one count of wire fraud. He also appeals two conditions of his supervised
*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).
***The Honorable Claudia Wilken, Senior District Judge for the U.S. District Court
for the Northern District of California, sitting by designation.
FILED
MAY 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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release. We have jurisdiction under 28 U.S.C. § 1291, and we dismiss in part and
affirm in part.
Yuriar’s plea agreement included a broad appellate waiver where he waived
his right to appeal any term of imprisonment “within or below the range
corresponding to an offense level of 20 and the criminal history category
calculated by the Court.” His sentence of 51 months—which is at the low end of
the range corresponding to an offense level of 18 and a criminal history category of
V—was squarely within the waiver’s scope. We are unpersuaded by Yuriar’s
argument that the waiver is unenforceable because of a variance between the
factual basis in the plea agreement and the indictment. The plea agreement’s
statement that the fraudulent scheme began in June 2011 is consistent with the
indictment’s allegation that it began “on or before August of 2012.” Even if the
clarification in the plea agreement could be interpreted as a variance, Yuriar fails
to show how it violated his substantial rights. See United States v. Anton, 547 F.2d
493, 496 (9th Cir. 1976) (“A variance does not affect the substantial rights of the
accused if (1) the indictment sufficiently informs the defendant of the charges
against him so that he may prepare his defense and not be misled or unfairly
surprised at trial and (2) if the variance is not such that it will deprive the defendant

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of his protection from reprosecution for the same offense.”). Therefore, because
the waiver covers the issues related to the term of imprisonment and Yuriar fails to
show that the waiver is invalid, his appeal of his 51-month sentence must be
dismissed. United States v. Rivera, 682 F.3d 1223, 1227 (9th Cir. 2012) (citing
Berger v. United States, 295 U.S. 78 (1935)).
Turning to the two remaining issues, which concern the terms of supervised
release, we are unpersuaded by Yuriar’s challenges. On the first issue, the district
court did not delegate authority to the probation officer to compel residential drug
treatment. Rather, the district court first ordered Yuriar to participate in outpatient
drug treatment, then provided that the probation officer could place Yuriar in a
residential treatment center if Yuriar agreed to it. Because the supervised release
condition required the probation officer to obtain Yuriar’s consent, this case differs
from cases where we have held that district courts wrongly delegated authority to
compel residential treatment. See, e.g., United States v. Esparza, 552 F.3d 1088,
1091 (9th Cir. 2009) (holding that a district court may not delegate the decision of
whether a defendant would receive inpatient or outpatient treatment). Here, the
supervised release condition was permissible.
On the second issue, Yuriar argues that the district court wrongly delegated

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authority to the Probation Officer to compel him to pay for his drug treatment
without finding that he has the means to do so. “We have previously held that
district courts do not abuse their discretion when they impose conditions of
supervised release that delegate to the probation officer the power to direct the
defendant to pay some or all of the costs of treatment.” United States v. Stoterau,
524 F.3d 988, 1007 (9th Cir. 2008). Yuriar cites no authority requiring the district
court to refer explicitly to 18 U.S.C. § 3672. Thus we reject this contention.
DISMISSED in part, AFFIRMED in part.

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