NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

ALBERTO SILVA-GARCIA, 

Defendant-Appellant.

No. 19-50052 

D.C. No. 

3:18-cr-04272-LAB-1 

MEMORANDUM*

Appeal from the United States District Court

for the Southern District of California

Larry A. Burns, Chief District Judge, Presiding

Submitted April 2, 2020**

Pasadena, California

Before: CALLAHAN and LEE, Circuit Judges, and LYNN,*** District Judge.

* 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 Barbara M. G. Lynn, United States Chief District 

Judge for the Northern District of Texas, sitting by designation.

FILED

JUN 3 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Alberto Silva-Garcia pleaded guilty to attempted reentry of a removed alien, 

a violation of 8 U.S.C. §§ 1326(a) and (b). Silva-Garcia appeals the district court’s 

denial of a fast-track reduction and imposition of supervised release conditions. 

We have jurisdiction under 28 U.S.C. § 1291 and review the sentence under an 

abuse of discretion standard.1 See Gall v. United States, 552 U.S. 38, 51 (2007).

A. We Affirm Silva-Garcia’s Sentence

The district court did not deny a fast-track reduction based on the 

government’s inconsistent application of fast-track reductions, but objectively 

considered the factors pursuant to 18 U.S.C. § 3553, enumerated reasons individual 

to Silva-Garcia, and correctly calculated Silva-Garcia’s sentence under the Federal 

Sentencing Guidelines. United States v. Gonzalez-Zotelo, 556 F.3d 736, 741–42 

(9th Cir. 2009).

Furthermore, the district court did not abuse its discretion by not referencing 

Silva-Garcia’s waiver of rights and the expeditious resolution of the case; instead, 

the district court considered all relevant factors. Because the district court retains 

“discretion to reject the parties’ joint request for a four-level departure under § 

5K3.1,” the court acted within its discretion by rejecting the government’s 

recommendation of a fast-track reduction. United States v. Rosales-Gonzales, 801

1 Because the parties are familiar with the facts of this application, we do not 

discuss them at length here. 
3 

F.3d 1177, 1185 (9th Cir. 2015). 

Moreover, the district court did not impose a sentence that was greater than 

necessary, because the district court properly weighed Silva-Garcia’s prior 

criminal and immigration history, afforded both parties the opportunity to argue, 

explained its rejection of the government’s recommendation, calculated the 

sentence according to the Federal Sentencing Guidelines (USSG § 5(A)), and 

considered the § 3553(a) factors (but declined to adopt a fast-track reduction). Id.

at 1184.

B. We Affirm Most of the Conditions of Supervised Release but Vacate 

Four Conditions

We decline to strike all of the standard and mandatory conditions because 

they are “deemed to be implicit” in the court’s oral sentence, as well as the special 

condition in the judgment (“Not reenter the United States illegally”) because it 

reflects the condition announced at the sentencing hearing (“don’t reenter the 

United States illegally”). United States v. Napier, 463 F.3d 1040, 1043 (9th Cir. 

2006).

We hold that conditions one, two, six, and eight through eleven are not 

unconstitutionally vague or unreasonable because we have consistently recognized 

that “a term of supervised release remains intact after [a defendant’s] deportation.” 

United States v. Ramirez-Sanchez, 338 F.3d 977, 980 (9th Cir 2003) (citing United 

States v. Soto-Olivas, 44 F.3d 788, 789 (9th Cir. 1995)). 
4 

Also, we reject Silva-Garcia’s objection to condition twelve, because a 

condition of supervised release “does not have to be related to the offense of . . .

conviction because the sentencing judge is statutorily required to look forward in 

time to crimes that may be committed in the future by the convicted defendant.” 

United States v. Bainbridge, 746 F.3d 943, 951 (9th Cir. 2014) (citing United 

States v. Blinkinsop, 606 F.3d 1110, 1119 (9th Cir. 2010)). 

Supervised release conditions four, five, and thirteen are vacated and 

remanded to the district court in accordance with United States v. Evans, 883 F.3d 

1154, 1162–65 (9th Cir. 2018).

2 See United States v. Ped, 943 F.3d 427, 433 (9th 

Cir. 2019). Additionally, because the phrase “excessive use of alcohol” in 

condition seven is vague, we remand for the district court to clarify in accordance 

with the most updated Standard Supervised Release Conditions (USSG § 5D1.3). 

See also United States v. Kappes, 782 F.3d 828, 849 (7th Cir. 2015).

Finally, the phrase “follow the instructions of the probation officer” in 

condition three is amended to include “related to the conditions of supervision”

pursuant to USSG § 5D1.3(c)(13). See Ped, 943 F.3d at 433 (granting this court 

authority to approve a narrow construction of supervised release conditions if they 

are “readily susceptible to a limiting construction”).

2 The government concedes that these conditions should be vacated in light of 

Evans.
5 

Silva-Garcia’s sentence is AFFIRMED, except for supervised release 

condition three, which is modified herein, and supervised release conditions four, 

five, seven, and thirteen, which are VACATED and REMANDED to the district 

court.