NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 8 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50097 Plaintiff-Appellee, D.C. No. 3:18-cr-04862-LAB-1 v. JOSE ROSARIO-MONTALVO, AKA Jose MEMORANDUM* Montalvo-Rosario, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, Chief District Judge, Presiding Argued and Submitted May 5, 2020 Pasadena, California Before: GOULD and CHRISTEN, Circuit Judges, and HELLERSTEIN,** District Judge. Defendant-Appellant Jose Rosario-Montalvo appeals his sentence of 41 months of imprisonment and three years of supervised release for the felony of illegal reentry after deportation, in violation of 8 U.S.C. § 1326. At sentencing, the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. court explained that the sentence was necessary to deter Rosario-Montalvo, who had three immigration-related convictions, had been deported eight times, and was not deterred sufficiently by a prior 37-month sentence for the same type of crime. Rosario-Montalvo argues that the custodial sentence is substantively and procedurally unreasonable due to the court’s reliance on a misunderstanding of fact; that the imposition of mandatory and standard conditions of supervised release in the written judgment conflicted with the oral pronouncement of sentence, which did not mention mandatory or standard conditions; and that certain of the standard conditions of supervised release are substantively unreasonable, unconstitutionally vague, or both. In determining Rosario-Montalvo’s sentence, the district court applied a one-level fast track departure instead of the Government’s recommended two-level departure, thereby raising the Guidelines range of custodial punishment. Rosario- Montalvo argues the sentence is substantively and procedurally unreasonable because the district court misunderstood Rosario-Montalvo’s history of fast-track dispositions for prior convictions. We review the substantive reasonableness of the sentence for abuse of discretion. United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir. 2012). Because defense counsel failed to object to the alleged procedural error at sentencing, we review it for plain error. United States v. Rangel, 697 F.3d 795, 800 (9th Cir. 2012). 2 19-50097 An erroneous finding of fact can give rise to a sentence that is substantively or procedurally unreasonable. Ressam, 679 F.3d at 1086; United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Early in the sentencing hearing, there was confusion in an exchange between the district court and the prosecutor about whether Rosario-Montalvo had received a fast-track disposition in the past. They were essentially talking past each other, with the district court referring to a 2010 conviction where Rosario-Montalvo received fast-track treatment, while the prosecutor was referring to a 2011 conviction where Rosario-Montalvo did not receive fast-track treatment. Nonetheless, before imposing the sentence, the district court resolved the confusion and correctly recited Rosario-Montalvo’s history with respect to fast-track treatment. Therefore, the district court did not rely on an erroneous finding of fact, ...
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