United States of America v. Dan Pizarro

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAN PIZARRO,
Defendant-Appellant.
No. 18-50164
D.C. No.
2:14-cr-00218-DSF-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted May 13, 2021**
Pasadena, California
Before: OWENS and R. NELSON, Circuit Judges, and HELLERSTEIN,***
District Judge.
Dan Pizarro appeals from his sentences for violations of his supervised-
release conditions. Pizarro, who is currently serving a life sentence for a federal
* 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 Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
FILED
MAY 21 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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drug-related conviction in Louisiana, was sentenced in this case to two nine-month
sentences to be served consecutively to that federal sentence and any subsequently
sentenced state cases. His sentence includes supervised-release conditions. As the
parties are familiar with the facts, we do not recount them here. We vacate
Pizarro’s sentence and remand for an open resentencing.
The district court imposed a number of supervised-release conditions,
including that Pizarro must “meet other family responsibilities,” “work regularly at
a lawful occupation,” and “notify third parties of risks that may be occasioned by
[his] criminal record or personal history or characteristics.” The parties agree that
these conditions are unconstitutionally vague and therefore plainly erroneous under
United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir. 2018).
The government urges this court not to vacate and order open resentencing,
but rather to “correct the error by remanding with specific instructions regarding
how the district court should modify the conditions.” In United States v. Ped, we
rejected a similar request because “[t]he district court is better suited to the job of
crafting adequate but not overly restrictive conditions.” 943 F.3d 427, 434 (9th
Cir. 2019) (internal quotation marks and citation omitted). Therefore, we vacate
Pizarro’s sentence and remand for an open resentencing, leaving the district court
discretion to fashion “whatever alternative conditions it deems appropriate,” id.,
and consider Pizarro’s other objections to his sentence in the first instance. See

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United States v. Vera, 893 F.3d 689, 695-96 (9th Cir. 2018); United States v.
Matthews, 278 F.3d 880, 885-86 (9th Cir. 2002) (en banc). As part of the open
resentencing, Pizarro may raise the consecutive sentencing arguments that he made
on appeal. We express no views on the merits of these arguments.
VACATED AND REMANDED.

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