United States of America v. Gustavo Abraham De Luna- Ortiz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
GUSTAVO ABRAHAM DE LUNA-
ORTIZ,
Defendant-Appellant.
No. 19-50035
D.C. No. 3:18-cr-03715-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted August 19, 2019**
Before: SCHROEDER, PAEZ, and HURWITZ, Circuit Judges.
Gustavo Abraham De Luna-Ortiz appeals from the district court’s judgment
and challenges the conditions of supervised release imposed following his guilty-
plea conviction for attempted reentry of a removed alien, in violation of 8 U.S.C.
§ 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part,
* 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
AUG 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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vacate in part, and remand with instructions.
De Luna-Ortiz contends that the district court erred by imposing in the
written judgment conditions of supervised release that the court did not orally
pronounce at sentencing. We review de novo. See United States v. Napier, 463
F.3d 1040, 1042 (9th Cir. 2006).
The district court did not err by including in the written judgment standard
supervised release conditions 1, 2, 6, 9, 10, 11, and 12 because the imposition of
mandatory and standard conditions “is deemed to be implicit in an oral sentence
imposing supervised release.” Id. at 1043.
However, the district court erred by including in the written judgment
conditions 4, 7, and 8 because it did not provide De Luna-Ortiz with the requisite
notice of these now nonstandard conditions. See id. (district court denies
defendant the right to be present for the imposition of sentence if it adds
nonstandard conditions to defendant’s sentence after the sentencing hearing).
Because it appears that the district court intended to include in the written
judgment the current versions of standard conditions 3, 5, and 13, we remand to the
district court to conform the written judgment to the current version of standard
conditions 3, 5, and 13.
In light of this disposition, we need not reach De Luna-Ortiz’s constitutional
challenges to some of the standard conditions included in the written judgment. To
the extent he argues that all of the standard conditions are substantively

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unreasonable because he will not be serving his supervised release in the United
States, we conclude that the district court did not abuse its discretion. See United
States v. Stoterau, 524 F.3d 988, 1002 (9th Cir. 2008).
AFFIRMED in part; VACATED in part; and REMANDED.

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