United States of America v. Angel Reyes-Torres

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANGEL REYES-TORRES,
Defendant-Appellant.
No. 19-50045
D.C. No. 3:18-cr-04986-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted October 15, 2019**
Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.
Angel Reyes-Torres appeals from the district court’s judgment and
challenges the 18-month sentence, three-year term of supervised release, and three
conditions of supervised release imposed following his guilty-plea conviction for
being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.
* 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).
FILED
OCT 23 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and remand
with instructions.
Reyes-Torres contends that the district court erred by denying the parties’
joint recommendation for a fast-track departure under U.S.S.G. § 5K3.1. We
review the denial of a fast-track departure only as part of our review of the overall
substantive reasonableness of the sentence. See United States v. Rosales-Gonzales,
801 F.3d 1177, 1180 (9th Cir. 2015).1 The district court did not abuse its
discretion by imposing the 18-month sentence, which is substantively reasonable in
light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the
circumstances, including Reyes-Torres’s significant immigration and criminal
history. See Gall v. United States, 552 U.S. 38, 51 (2007).
Reyes-Torres next contends that the district court erred by failing to
calculate the Guidelines range for the supervised release term and by insufficiently
explaining its decision to impose a three-year term. We review for plain error, see
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and
1 Contrary to Reyes-Torres’s argument, Rosales-Gonzales is not “clearly
irreconcilable” with Molina-Martinez v. United States, 136 S. Ct. 1338 (2016). See
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). Thus, we remain
bound by Rosales-Gonzales. The record belies Reyes-Torres’s contention that the
district court denied the fast-track departure based on a blanket policy. Rather, the
record reflects that the court properly declined to grant the departure based on the
particular circumstances of Reyes-Torres’s case. See Rosales-Gonzales, 801 F.3d
at 1183-84.

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conclude that there is none. On this record, Reyes-Torres has not shown a
reasonable probability that he would have received a different sentence had the
district court expressly calculated the applicable Guidelines range or more fully
explained its decision to impose the three-year term of supervised release. See
United States v. Dallman, 533 F.3d 755, 762 (9th Cir. 2008).
Finally, the government concedes, and we agree, that conditions 4, 7, and 8
in the written judgment conflict with the oral pronouncement of sentence, which
did not include these nonstandard conditions. See United States v. Napier, 463
F.3d 1040, 1042 (9th Cir. 2006). We thus remand and instruct the district court to
strike conditions 4, 7, and 8 from the written judgment. See United States v. Hicks,
997 F.2d 594, 597 (9th Cir. 1993).
AFFIRMED in part; REMANDED with instructions.

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