NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 20 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50186

Plaintiff-Appellee, D.C. No. 3:17-cr-04445-LAB-1 v.

JOSE ALFREDO ROJAS-MARTINEZ, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted October 21, 2019 Pasadena, California

Before: KLEINFELD, PAEZ, and CALLAHAN, Circuit Judges.

Jose Alfredo Rojas-Martinez appeals his sentence after pleading guilty to

illegal reentry under 8 U.S.C. § 1326. Rojas-Martinez first argues the government

breached the plea agreement at the sentencing hearing. We disagree and therefore

enforce the plea agreement’s issue waiver. Rojas-Martinez next argues the district

court violated his right to be present at sentencing when it imposed conditions of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. supervised release for the first time in its written judgment. We agree and

therefore remand with instructions.

1. We first address whether we can consider Rojas-Martinez’s argument

that the government breached the plea agreement, which he did not raise before the

district court. The plea agreement speaks directly to the issue of government

breach of the agreement. Section XII provides that Rojas-Martinez and his

attorney

shall raise, before the sentencing hearing is complete, any claim that the Government has not complied with this agreement. Otherwise, such claims shall be deemed waived (that is, deliberately not raised despite awareness that the claim could be raised), cannot later be made to any court, and if later made to any court, shall constitute a breach of this agreement.

Neither Rojas-Martinez nor his attorney raised at the sentencing hearing any claim

that the government had not complied with the plea agreement. Thus, by the terms

of the plea agreement, Rojas-Martinez waived his claim of the government’s

breach, and he is not entitled to raise that claim here. Nevertheless, even if we

were to consider the argument, see United States v. Hernandez-Castro, 814 F.3d

1044, 1045 (9th Cir. 2016), we would reject it.

2. Under the plea agreement, the government promised to “jointly

recommend” a four-level departure based on an early disposition program known

as “Fast Track.” Before the sentencing hearing, the government recommended that

departure in writing. At the hearing, the government reiterated its

2 recommendation, explaining that the government was “prepared to submit” based

on its written recommendation. The government thus kept its promise, and the

government did not impliedly break it by making statements “indicating a

preference for a harsher sentence,” United States v. Franco-Lopez, 312 F.3d 984,

992 (9th Cir. 2002), or serving “no purpose but to influence the court to give a

higher sentence,” United States v. Whitney, 673 F.3d 965, 971 (9th Cir. 2012). The

government was under no obligation to provide its recommendation

“enthusiastically.” United States v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999).

We find no breach here.

Rojas-Martinez argues, given the promise to recommend a departure “for”

Fast Track, that the government had to say more about why a Fast Track departure

was appropriate in his case. But the government disclosed the basis of its

recommended departure. The district court was aware of the recommended Fast

Track departure, repeatedly asked about it at hearing, and even discussed the

United States Department of Justice’s internal guidance on the Fast Track program.

Rojas-Martinez essentially argues that the government had to affirmatively defend

its exercise of discretion in recommending a Fast Track departure. But the plea

agreement made no such promise.

The government did not breach the plea agreement. We therefore enforce

the plea agreement’s issue waiver against Rojas-Martinez and dismiss the appeal to

3 the extent Rojas-Martinez asserts the government’s breach.

3. A defendant has a right to be present at his sentencing under the Sixth

Amendment and the Federal Rules of Criminal Procedure. United States v. Napier,

463 F.3d 1040, 1042 (9th Cir. 2006); Fed. R. Crim. P. 43(a)(3). The actual

imposition of a sentence occurs at the oral sentencing, not when the written

judgment is later entered. United States v. Aguirre, 214 F.3d 1122, 1125 (9th Cir.

2000). Thus, when an oral sentence is unambiguous, it controls over a written

sentence that directly conflicts with it. Napier, 463 F.3d at 1042. Imposition of

mandatory or standard conditions of supervised release is deemed to be implicit in

an oral sentence. Id. When the oral sentence is ambiguous, the written judgment

may clarify the oral pronouncement but may not substantively add to it. United

States v. Garcia, 37 F.3d 1359, 1368 (9th Cir. 1994).

Here, the parties agree that the district court’s imposition of three styled-

“standard” conditions of supervised release—none of which are among the

Sentencing Guidelines’ enumerated standard conditions—were not implied by the

court’s pronouncement. See Napier, 463 F.3d at 1043; U.S.S.G. 5D1.3(c)–(d).

The oral pronouncement controls, and we vacate the judgment and remand with

instructions to strike these three conditions. See United States v. Jones, 696 F.3d

932, 938 (9th Cir. 2012).

Rojas-Martinez also challenges a styled-“special” condition of supervised

4 release requiring Rojas-Martinez to “report to the probation officer within 72 hours

of any reentry to the United States.” In pronouncing sentence, the district court did

not reference such a condition. Because the condition would substantively alter

Rojas-Martinez’s sentence, we must vacate it. Napier, 463 F.3d at 1043. But

unlike with the three styled-“standard” conditions, the oral pronouncement is

ambiguous regarding this condition. By pronouncing that Rojas-Martinez “don’t

come back to the United States,” the district court contemplated that he might

return but never explained what Rojas-Martinez was required to do if he did.

Given the ambiguity in the oral pronouncement, we remand for resentencing as to

this “special” condition. Id.

In sum, in light of the plea agreement’s issue waiver, we dismiss Rojas-

Martinez’s appeal to the extent it asserts the government breached the plea

agreement at sentencing. We also vacate all four of the challenged conditions. On

remand, the district court should strike the three styled-“standard” conditions, and

resentence or otherwise reconsider the styled-“special” condition.

DISMISSED in part; VACATED in part; and REMANDED.

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