NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 6 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10232

Plaintiff-Appellee, D.C. No. 3:20-cr-00062-RCJ-CLB-1 v.

ALLAN FABRICIO SOTO TOME, AKA MEMORANDUM*

Christian Alberto, AKA Carlos Alejandro- Garcia, AKA Joel Cano, AKA Luis Armando Gonzalez-Cano, AKA Christian Nunez- Flores, AKA Christian Alberto Nunez- Flores, AKA Juan Diego Santos-Carvajal, AKA Allan Fabricio Soto, AKA Carlos Alejandro Soto, AKA Allan Fabricio Soto- Tome,

Defendant-Appellant.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding

Submitted October 4, 2023** University of Nevada Las Vegas

* 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). Before: RAWLINSON and OWENS, Circuit Judges, and FITZWATER,*** District Judge.

Defendant Allan Soto Tome challenges the district court’s acceptance of his

guilty plea, his sentence, and a suspicionless search condition of his supervised

release. Because Soto Tome did not make any of these objections

contemporaneously, we review for plain error, see United States v. Ferguson, 8

F.4th 1143, 1145 (9th Cir. 2021), except his challenge to the substantive

reasonableness of his sentence, which we review for an abuse of discretion, United

States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). We affirm.

1. The district court did not plainly err in accepting Soto Tome’s plea

under Fed. R. Crim. P. 11 (“Rule 11”) because the alleged errors did not affect

Soto Tome’s substantial rights, as is required to show plain error. See Ferguson, 8

F.4th at 1145. Errors affect substantial rights when there is a reasonable

probability that they prejudiced the outcome of the proceedings, meaning that they

affected Soto Tome’s decision to plead guilty without a plea agreement. United

States v. Fuentes-Galvez, 969 F.3d 912, 915-16 (9th Cir. 2020).

“[T]he record [does not] reflect any confusion or uncertainty on [Soto

Tome’s] part during the hearing,” and he does not argue that he was unaware of his

rights. United States v. Covian-Sandoval, 462 F.3d 1090, 1096 (9th Cir. 2006).

*** The Honorable Sidney A. Fitzwater, United States District Judge for the Northern District of Texas, sitting by designation.

2 He had read or heard the “No Plea Memorandum,” which discussed the charges

and penalties. And the district court reviewed most of his trial rights with him,

even though it did not ask if he waived them. Further, Soto Tome admitted to the

offense multiple times and does not “assert he would have declined to plead guilty

if the . . . judge had [properly advised him].” Ferguson, 8 F.4th at 1146. Thus,

these alleged errors did not create a reasonable probability that Soto Tome would

not have entered his guilty plea.

Soto Tome’s argument that he need not show prejudice because the district

court failed to satisfy a core concern of Rule 11 is precluded. See United States v.

Dominguez Benitez, 542 U.S. 74, 76 (2004). We therefore hold that the district

court did not plainly err in accepting the guilty plea.

2. The district court also did not commit plain procedural error by

relying on clearly erroneous facts. Facts are clearly erroneous when they are

“illogical, implausible, or without support in the record.” United States v.

Bontemps, 977 F.3d 909, 917 (9th Cir. 2020) (citation omitted).

It is plausible to conclude that Soto Tome has a “propensity to re-enter [the

United States] illegally,” because he undisputedly entered the country twice

without documentation, and there is record support that he did so a third time after

possibly being deported following an illegal entry conviction. And even if we

disagree with the conclusion that Soto Tome has a “propensity . . . to distribute

3 drugs,” it is plausible. Soto Tome pled guilty to possession with intent to distribute

over eleven pounds of heroin, had separately been arrested on similar charges, and

has struggled with addiction. Thus, these findings are not clearly erroneous.

The district court also did not plainly err by stating, while deciding to vary

below the mandatory minimum, that “there is a risk . . . of not deporting folks.”

See United States v. Christensen, 732 F.3d 1094, 1102-03 (9th Cir. 2013) (holding

that the district court did not err by referring to incorrect facts because the district

court’s other statements made apparent that it based its sentence on the correct

facts). In imposing the sentence, the district court did not rely on this comment.

On the contrary, it extensively discussed its concerns about Soto Tome re-entering

the country, presuming that he would be deported. That the district judge has

made similar erroneous statements in other cases does not change our analysis.1

3. The 84-month sentence is substantively reasonable and not an abuse

of discretion. The district court applied the 18 U.S.C. § 3553(a) factors, see United

States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012) (en banc), and varied below

the statutory minimum to impose a lower mid-range guidelines sentence.

4. The district court did not plainly err in imposing a suspicionless

search condition without explanation. A district court can order a special condition

1 Because the district court did not commit plain procedural error, we do not address Soto Tome’s argument that the case should be reassigned on remand.

4 of supervised release if it is reasonably related to the 18 U.S.C. § 3583(d)(1)

factors, including the nature of the offense, the history of the defendant, and the

need for deterrence and rehabilitation. Unless a special condition implicates a

“particularly significant liberty interest,” the district court need not justify it as

long as the reasoning is apparent. United States v. Wolf Child, 699 F.3d 1082,

1090 (9th Cir. 2012) (citation omitted).

Here, the district court did not need to explain the suspicionless search

condition because such conditions do not implicate the Fourth Amendment, United

States v. Betts, 511 F.3d 872, 876 (9th Cir. 2007), and the condition’s nexus to the

18 U.S.C. § 3583(d)(1) factors is clear from the record. See United States v. Bare,

806 F.3d 1011, 1018 (9th Cir. 2015). In addition to the underlying possession with

intent to distribute offense, Soto Tome has a DUI and a juvenile conviction for

drug possession and has struggled with addiction. Suspicionless searches would

help ensure that he does not possess a controlled substance, so the condition is

related to the nature of the offense, the history of the defendant, and the need for

deterrence and rehabilitation. See 18 U.S.C. § 3583(d)(1).

AFFIRMED.2

2 The government concedes that the conditions of supervised release do not apply outside the United States. As a result, we do not address Soto Tome’s request for further clarification on this matter.

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