United States of America v. OTIS JAMES MIXON, AKA James Otis Mixon, AKA Otis James Mixon, Jr.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
OTIS JAMES MIXON, AKA James Otis
Mixon, AKA Otis James Mixon, Jr.,
Defendant-Appellant.
No. 18-50192
D.C. No. 5:17-cr-00203-ODW-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Otis D. Wright II, District Judge, Presiding
Submitted June 11, 2019**
Before: CANBY, GRABER, and MURGUIA, Circuit Judges.
Otis James Mixon appeals from the district court’s judgment and challenges
the 42-month sentence and three conditions of supervised release imposed
following his guilty-plea conviction for bank robbery, in violation of 18 U.S.C.
§ 2113(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and
* 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
JUN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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vacate and remand in part.
Mixon contends that the district court procedurally erred by failing to
address his non-frivolous arguments in support of a lesser sentence. 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
considered Mixon’s arguments and explained its reasons for imposing the below-
Guidelines sentence, including the nature of the offense and Mixon’s criminal
history. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc);
see also United States v. Perez-Perez, 512 F.3d 514, 516 (9th Cir. 2008)
(sentencing judge need not expressly address every sentencing argument). Mixon
also contends that his sentence is substantively unreasonable. The district court did
not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The
sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing
factors and the totality of the circumstances. See Gall, 552 U.S. at 51.
Lastly, Mixon challenges standard supervised release conditions five, six,
and fourteen in the written judgment. The government concedes, and we agree,
that these conditions are unconstitutionally vague. See United States v. Evans, 883
F.3d 1154, 1162-64 (9th Cir.), cert. denied, 139 S. Ct. 133 (2018). We therefore
remand for the district court to modify conditions five, six, and fourteen consistent
with our opinion in Evans.

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Mixon’s unopposed motion to file the opening brief under seal, and the
government’s unopposed motion to file the answering brief under seal, are granted.
The Clerk will maintain Docket Entry Nos. 9 and 17 under seal.
AFFIRMED in part; VACATED and REMANDED in part.

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