United States of America v. Antonio Alba-Romero

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ANTONIO ALBA-ROMERO,
Defendant-Appellant.
No. 20-50063
D.C. No. 3:19-cr-02215-CAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Cathy Ann Bencivengo, District Judge, Presiding
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Antonio Alba-Romero appeals from the district court’s judgment and
challenges the 12-month term of supervised release imposed following his guilty-
plea conviction for attempted unlawful entry by an alien, in violation of 8 U.S.C.
§ 1325, and attempted reentry of a removed alien, 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
FEB 22 2021
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.
Contrary to Alba-Romero’s contention, the district court’s oral
announcement of a three-year term of supervised release does not require remand.
While he is correct that the supervised release term could not exceed one year, see
18 U.S.C. §§ 3581(b)(5) and 3583(b)(3), the district court properly corrected its
“clear error” by imposing a one-year term in the written judgment. See Fed. R.
Crim. P. 35(a); United States v. Colace, 126 F.3d 1229, 1231 (9th Cir. 1997).
Alba-Romero’s presence was not required for that correction. See Fed. R. Crim. P.
43(b)(4).
Alba-Romero also argues that the district court procedurally erred by
imposing a term of supervised release. We review for plain error, see United
States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude
that there is none. The record reflects that the district court determined supervised
release would provide an additional measure of deterrence given Alba-Romero’s
immigration history and family ties to the United States. See U.S.S.G. § 5D1.1
cmt. n.5. Contrary to Alba-Romero’s argument, the district court did not rely on
any clearly erroneous findings of fact in reaching that conclusion. On this record,
Alba-Romero has not shown a reasonable probability of a different sentence absent
the cumulative impact of the district court’s alleged procedural errors in imposing
supervised release. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir.

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2008); see also United States v. Necoechea, 986 F.2d 1273, 1282-83 (9th Cir.
1993) (cumulative impact of possible plain errors is reviewed for plain error).
AFFIRMED.

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