NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 8 2025

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, No. 23-757 D.C. No. Plaintiff - Appellee, 3:18-cr-00049-LRH-CLB-1 v.

MEMORANDUM*

ERIC ROMERO-LOBATO,

Defendant - Appellant.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding Argued and Submitted March 5, 2025 Las Vegas, Nevada

Before: RAWLINSON, MILLER, and DESAI, Circuit Judges. Partial Dissent by Judge DESAI. Following two jury trials, Eric Romero-Lobato was convicted of conspiracy

to commit Hobbs Act robbery, attempted Hobbs act robbery, discharging a firearm

during a crime of violence, carjacking, using a firearm during a crime of violence,

and two counts of possession of a firearm by a felon. In a previous appeal, we

vacated Romero-Lobato’s conviction for discharging a firearm during a crime of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. violence in light of the Supreme Court’s decision in United States v. Taylor, 596

U.S. 845 (2022), and we remanded the case for resentencing. See United States v.

Romero-Lobato, 2022 WL 2387214, at *1 (9th Cir. July 1, 2022) (unpublished).

The district court then imposed a 272-month term of imprisonment followed by a

five-year term of supervised release, which included a condition requiring Romero-

Lobato to submit to suspicionless searches of his person, property, residence, and

automobile. Romero-Lobato appeals his sentence. We have jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm in part and vacate and remand in

part.

1. The district court did not abuse its discretion by imposing the

suspicionless search condition. See United States v. Daniels, 541 F.3d 915, 924

(9th Cir. 2008). The district court explained that the condition was warranted by

the egregious nature of the present offenses and by Romero-Lobato’s criminal

history, including his history of eluding law enforcement. Those are appropriate

considerations under 18 U.S.C. § 3583(d)(1), and we afford “substantial

deference” to the district court’s determination of how to “fashion[] the conditions

needed for successful supervision of a defendant.” United States v. LaCoste, 821

F.3d 1187, 1190 (9th Cir. 2016).

Romero-Lobato argues that the district court had to “follow additional

procedures and make special findings” because this condition implicates a

2 23-757 “particularly significant liberty interest.” United States v. Stoterau, 524 F.3d 988,

1005 (9th Cir. 2008). But we have never held that suspicionless search conditions

trigger heightened procedural requirements. To the contrary, we have rejected

challenges to suspicionless search conditions where the district court provided a

justification comparable to that provided by the district court here. See, e.g., United

States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007). Indeed, in the prior appeal in this

case, we explained that “[t]he district court was . . . not required to state further its

specific reasons for the [suspicionless search condition].” 2022 WL 2387214, at

*4.

2. Romero-Lobato argues that the district court abused its discretion because

it did not give him advance notice that it was considering imposing a suspicionless

search condition. See United States v. Quinzon, 643 F.3d 1266, 1269 (9th Cir.

2011). We disagree. The district court had imposed exactly the same condition at

Romero-Lobato’s first sentencing. Although we vacated that sentence and

remanded for plenary resentencing, we did so only because an unrelated change in

the law required vacatur of one of Romero-Lobato’s seven convictions. 2022 WL

2387214, at *3. But we expressly affirmed the district court’s choice to impose the

search condition. Id. at *4. That history was sufficient to put Romero-Lobato on

notice that the district court might consider imposing the condition at resentencing.

3. The district court did not abuse its discretion by imposing a 272-month

3 23-757 term of imprisonment. The district court explained that the term of imprisonment,

much like the suspicionless search condition, was justified by the “chilling” nature

of the offenses, the effect of these offenses on the victims, and Romero-Lobato’s

criminal history. Those are appropriate bases for a sentence under 18 U.S.C. §

3553(a). Romero-Lobato offers various reasons in support of a lower sentence, but

he does not engage with the district court’s analysis about the nature of the

offenses or his criminal history. He has not shown an abuse of discretion. See

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

The district court also did not commit plain procedural error by failing to

adequately consider Romero-Lobato’s arguments in support of a lower sentence.

Romero-Lobato presented these arguments to the district court in a sentencing

memorandum. The district court explained that it “reviewed . . . [that] sentencing

memorandum.” That it chose not to expressly address the arguments at the

sentencing hearing simply reveals that the district court found the arguments to

lack merit. See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1053–54 (9th

Cir. 2009). Our precedent requires nothing more. See Carty, 520 F.3d at 995.

4. The parties agree that a limited remand is appropriate to allow the district

court to orally pronounce, in Romero-Lobato’s presence, the standard discretionary

conditions of supervised release “that it chooses to impose,” after giving Romero-

Lobato “a chance to object to them.” United States v. Montoya, 82 F.4th 640, 656

4 23-757 (9th Cir. 2023) (en banc).

The government’s motion for judicial notice (Dkt. No. 38) is GRANTED.

AFFIRMED in part; VACATED and REMANDED in part.

5 23-757

FILED

United States v. Romero-Lobato, No. 23-757 AUG 8 2025

MOLLY C. DWYER, CLERK

DESAI, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS

I respectfully dissent from Section 2 of the memorandum disposition.

Romero-Lobato did not receive notice of the district court’s intent to impose a

suspicionless search supervised release condition at his sentencing. Thus, I would

vacate the supervised release portion of his sentence and remand to the district court.

Our precedent is clear. A district court must provide advance notice that it is

contemplating imposing a suspicionless search condition before imposing it at

sentencing “so that counsel and the defendant will have the opportunity to address

personally its appropriateness.” United States v. Wise, 391 F.3d 1027, 1033 (9th Cir.

2004) (“Where a condition of supervised release is not on the list of mandatory or

discretionary conditions in the sentencing guidelines, notice is required before it is

imposed.”); see also United States v. Reyes, 18 F.4th 1130, 1138 (9th Cir. 2021)

(holding that the district court “erred by failing to give notice that it was

contemplating imposing its broad search condition prior to imposing that condition

in its oral pronouncement of sentence”). Indeed, “[i]t is not enough notice . . . first

to impose the sentence, and then to invite counsel to comment, at least where counsel

objects” because “[t]alking a judge out of a decision he has already made is a

different and harder task than persuading him not to make it.” Wise, 391 F.3d at 1033.

1 But that is precisely what happened here. The district court gave no written or

oral notice that it was going to impose the suspicionless search condition. The court

instead announced for the first time at Romero-Lobato’s new sentencing that it

would not adopt the presentence investigation report’s (“PSR”) recommendation to

impose a search requirement “based on reasonable suspicion.” And defense counsel

could only object after the district court’s decision. The district court’s failure to

provide advance notice of this broad search condition contravenes our precedent.

See id; Reyes, 18 F.4th at 1138. What is more, the district court unfairly deprived

Romero-Lobato of the chance to negotiate a more favorable condition with the

government. See Wise, 391 F.3d at 1033 (noting that advance written notice

“allow[s] negotiation of a condition upon which the government and the defense

could agree.”). Thus, the district court erred. That should be the end of this

straightforward inquiry.

Instead, the majority’s decision takes a puzzling turn. Rather than reinforcing

the district court’s obligation to provide advance notice of a non-standard supervised

release condition at sentencing, the majority summarily concludes that Romero-

Lobato received sufficient notice because the same condition was imposed as part of

an earlier, vacated sentence. Maj. at 3. See United States v. Romero-Lobato, No. 20-

10280, 2022 WL 2387214, at *1, *3 (9th Cir. July 1, 2022). I disagree.

2 Our precedent does not distinguish between sentencing and resentencing in

this context. And for good reason. A resentencing is a new sentencing. See United

States v. Tat, 97 F.4th 1155, 1161 (9th Cir. 2024) (explaining that “it is a settled

principle that vacating an appellant’s original sentence legally wipes the slate clean

. . . and that on remand . . . the defendant is placed in the same position as if he or

she had never been sentenced” (citation modified)); United States v. Merrell, 37 F.4th

571, 576 (9th Cir. 2022) (noting that for resentencing, “absent contrary instructions

from an appellate court,” the district court “generally should be free to consider any

matters relevant to sentencing . . . as if it were sentencing de novo.” (quotation

omitted)). Thus, the same rules apply to a subsequent sentencing as the first

sentencing. In this case, that means that Romero-Lobato is entitled to the same notice

of the district court’s intent to impose a non-mandatory and non-discretionary

supervised release condition at resentencing as he was at his initial sentencing. The

majority’s manufactured distinction between sentencing and resentencing to excuse

the district court’s noncompliance with our governing precedent is both unreasoned

and unsound.

The majority assumes that the district court’s prior imposition of the

suspicionless search condition made it obvious that the court might1 reimpose the

1 The majority attempts to circumvent the district court’s broad notice obligations by reasoning that Romero-Lobato was on notice the court “might”

3 condition on resentencing—implicitly providing Romero-Lobato notice. But this

assumption is incorrect and belied by the record. In Romero-Lobato’s prior appeal,

this court vacated one of his convictions and remanded for resentencing after the

Supreme Court ruled in United States v. Taylor, 596 U.S. 845 (2022), that attempted

Hobbs Act robbery does not qualify as a crime of violence. See Romero-Lobato,

2022 WL 2387214, at *1, *3. Thus, on remand, Romero-Lobato’s criminal exposure

was reduced and the new PSR recommended a different search condition from the

first sentencing: one that only allowed searches “based on reasonable suspicion.”

The government did not object to this new search condition, and the district court

did not provide any notice that it intended to reject the PSR’s recommendation.

Moreover, Romero-Lobato observed the district court adopt the PSR’s

recommendations at his first sentencing. Under the majority’s reasoning, it would be

equally if not more appropriate for Romero-Lobato to assume that the district court

would adopt the search “based on reasonable suspicion” condition recommended by

the new PSR—particularly because the government did not object. After all, it is

entirely possible, if not probable, that the district court would adopt the

reimpose the same search condition because the court had imposed that condition before. Maj. at 3. But this is insufficient. The court was required to provide Romero- Lobato notice that it was “contemplating” such a condition, and there was no such notice here. See Wise, 391 F.3d at 1033; Reyes, 18 F.4th at 1138. The majority’s logic renders our notice requirement toothless: every defendant arguably has notice that the district court “might” or “could” impose certain sentencing conditions. That is not the standard. 4 recommended search condition because Romero-Lobato had less criminal exposure

on remand. Indeed, the district court decreased his term of imprisonment

substantially from 319 months to 272 months. But none of this conjecture is

necessary because our court’s notice requirement is clear. And, here, Romero-Lobato

did not receive notice that the district court intended to impose a broader search

condition than recommended in the PSR.

Because I would hold that the district court failed to give Romero-Lobato

sufficient notice of its intent to impose the suspicionless search condition, I would

vacate the supervised release portion of the sentence without reaching the merits and

remand to the district court for the limited purpose of imposing a new supervised

release sentence consistent with our precedent. See Reyes, 18 F.4th at 1139.

I respectfully dissent in part.

5