NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

FRANCISCO ALFREDO PALACIOSGUERRERO, AKA Alfredo PalaciosGuerrero, 

Defendant-Appellant.

No. 19-50071 

D.C. No. 

3:18-cr-04962-LAB-1 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, Chief District Judge, Presiding

Submitted December 10, 2020**

Pasadena, California

Before: GOULD and R. NELSON, Circuit Judges, and COGAN,*** District Judge.

Defendant-Appellant Francisco Palacios-Guerrero appeals from the district 

* 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).

*** The Honorable Brian M. Cogan, United States District Judge for the 

Eastern District of New York, sitting by designation.

FILED

DEC 17 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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court’s judgment and challenges the substantive reasonableness of his 60-month 

sentence and the conditions of supervised release imposed after his guilty-plea 

conviction for attempted reentry of a removed alien, in violation of

8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in 

part, vacate in part, and remand with instructions.

Before sentencing, the Government agreed to recommend a two-level fasttrack departure under the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 

(2003), despite the fact that Appellant had previously received such fast-track 

reductions three times. At the sentencing hearing, the district court expressed 

concern with Appellant’s extensive criminal and immigration history and engaged 

in a lengthy discussion with the Government about why they were offering another 

fast-track departure to Appellant. The court declined to grant another fast-track 

departure and instead calculated a Guidelines range of 37 to 46 months based on an 

adjusted offense level of 15 and a criminal history category of V. Concluding that 

the upper end of the range would be insufficient to deter Appellant and promote 

respect for the law, the court varied upward from the Guidelines and imposed a 60-

month sentence and three years of supervised release. The court orally announced 

two conditions of supervised release: Appellant could not reenter the United States 

or violate any United States laws. The written judgment included those two 

conditions as well as thirteen additional conditions classified as “mandatory” or 
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“standard.” 

Appellant contends that his 60-month sentence is substantively unreasonable 

because the district court impermissibly considered perceived disparities in how 

the Government recommends fast-track departures. We disagree. We review the 

substantive reasonableness of a sentence for abuse of discretion. United States v. 

Autery, 555 F.3d 864, 871 (9th Cir. 2009). Sentences are reasonable if they are 

based on “rational and meaningful consideration of the factors enumerated in 18 

U.S.C. § 3553(a).” United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012). 

While one of those factors is “the need to avoid unwarranted sentence disparities” 

among similarly-situated defendants, 18 U.S.C. § 3553(a)(6), a district court may 

not take fast-track disparities into account in sentencing because they are 

considered “warranted” disparities. United States v. Gonzalez-Zotelo, 556 F.3d 

736, 738 (9th Cir. 2009). 

Contrary to Appellant’s contention, the district court made clear that it based 

its decision to impose a higher sentence on its consideration of the § 3553 factors, 

and—given Appellant’s extensive history of custodial sentences and deportations 

based on that conduct—concluded that those factors could not be consistent with 

the Government’s decision to offer a fast-track departure. A sentencing court acts 

fully within its discretion when it “consider[s] the defendant’s repetition of the 

same or similar offenses” and bases its sentence on that fact. United States v. 
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Segura-Del Real, 83 F.3d 275, 277 (9th Cir. 1996). We conclude that Appellant’s 

60-month sentence was not an abuse of discretion. 

Appellant next contends that the district court erred by imposing conditions 

of supervised release in the written judgment that the court did not orally 

pronounce at sentencing. We review whether a written judgment conflicts with the 

oral pronouncement of a sentence de novo. United States v. Napier, 463 F.3d 

1040, 1042 (9th Cir. 2006). The district court did not err by including additional 

supervised release conditions in the written judgment because the imposition of 

mandatory and standard conditions “is deemed to be implicit in an oral sentence 

imposing supervised release.” Id. at 1043. We do not read the district court’s 

reference to two conditions of supervised release as unambiguously asserting that it 

intended to impose only two conditions. 

However, as the Government concedes, the district court did err by including 

conditions 4 and 7 in the written judgment because it did not provide Appellant 

with the requisite notice of these now nonstandard conditions. The district court 

used an outdated judgment form from 2013, and both conditions have since been 

reclassified as “special” conditions, which “cannot be deemed to have been 

implicit in the oral imposition of supervised release.” Id.; see U.S.S.G. supp. app. 

C amend. 803 (Nov. 1, 2016). For this reason, we conclude that conditions 4 and 7 

must be stricken from the judgment.
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Appellant contends that conditions 3, 5, and 13 should likewise be stricken 

because the outdated versions of those conditions—which were used in 

Appellant’s judgment—were previously held to be unconstitutionally vague. See 

United States v. Evans, 883 F.3d 1154, 1162–63 (9th Cir. 2018). But because it 

appears that the district court intended to include in the written judgment the 

current versions of standard conditions 3, 5, and 13, we remand to the district court

with instructions to conform the written judgment to the current version of

standard conditions 3, 5, and 13. In light of this disposition, we need not reach 

Appellant’s constitutional challenges to the earlier iteration of these conditions.

Finally, Appellant contends that conditions 1, 2, 6, 8, 9, 10, 11 and 12 are 

substantively unreasonable because he will not be serving his supervised release in 

the United States. A supervised release condition is substantively unreasonable “if 

it is not reasonably related to the goal[s] of deterrence, protection of the public, or 

rehabilitation of the offender, or if it infringes more on the offender’s liberty than 

is ‘reasonably necessary’ to accomplish these statutory goals.” United States v. 

Wolf Child, 699 F.3d 1082, 1090 (9th Cir. 2012) (cleaned up) (quoting 18 U.S.C. 

§ 3583(d)(2)). We conclude that the district court properly considered whether 

supervised release would provide an added measure of deterrence and thus did not 

abuse its discretion.

AFFIRMED in part; VACATED in part; REMANDED.