FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 05-30356 Plaintiff-Appellee,

D.C. No. v. 

CR-04-00301-016-

ADRIAN GARCIA, MJP

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

No. 05-30391 Plaintiff-Appellee,

D.C. No. v. 

CR-04-00301-003-

IVAN TORRES, MJP

Defendant-Appellant. 

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 05-30415

v. D.C. No.

M CR-04-00301-007- IGUEL PLASCENCIA-ALVARADO,  MJP also known as Esteban GarciaMorales also known as Angel AMENDED

Caloca, OPINION

Defendant-Appellant. 

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

4125
Argued and Submitted

July 25, 2006

Submission Withdrawn October 31, 2006

Resubmitted November 1, 2007

Seattle, Washington

Filed November 19, 2007

Amended April 17, 2008

Before: J. Clifford Wallace, Kim McLane Wardlaw and

Raymond C. Fisher, Circuit Judges.

Opinion by Judge Fisher

4126 UNITED STATES v. GARCIA
COUNSEL

Mary Anne Royle, Vancouver, Washington, for defendantappellant Adrian Garcia. 

Nancy L. Talner, Seattle, Washington, for defendant-appellant

Miguel Plascencia-Alvarado. 

Jeffrey E. Ellis, Law Offices of Ellis, Holmes & Witchley,

PLLC, Seattle, Washington, for defendant-appellant Ivan Torres. 

John L. Lulejian (argued), Assistant United States Attorney,

and James M. Lord, Assistant United States Attorney, Seattle,

Washington, for the plaintiff-appellee. 

4128 UNITED STATES v. GARCIA
Stephen R. Sady, Chief Deputy Federal Public Defender,

Portland, Oregon, and David M. Porter, Assistant Federal

Defender, Sacramento, California, for the amicus curiae

Ninth Circuit Federal Public and Community Defenders. 

OPINION

FISHER, Circuit Judge:

This appeal requires us to consider several allegations of

sentencing error. We also must determine whether a district

court commits plain error by failing to explicitly set the maximum number of non-treatment related drug tests to which the

defendant will be exposed as a condition of supervised

release. Finally, we must evaluate whether a district court

commits plain error by imposing a financial disclosure condition on a defendant who has been convicted of a drug trafficking offense and has a history of drug use. We affirm the

sentences imposed and hold that the district court did not

commit plain error by imposing either condition. 

I. Background

Because the issues on appeal are exclusively related to sentencing, we need not recount detailed facts of the underlying

criminal offenses to which the defendants pled guilty. Rather,

we explain only those facts relevant to our resolution of the

defendants’ allegations of sentencing error. 

Adrian Garcia, Ivan Torres and Miguel PlascenciaAlvarado were all involved in a large-scale drug trafficking

conspiracy in the Western District of Washington. After being

charged with various crimes, all three entered into Rule 11

written plea agreements. See Fed. R. Crim. P. 11(c)(1)(C).1

1Rule 11(c)(1)(C) provides in part: 

UNITED STATES v. GARCIA 4129
Garcia pled guilty to conspiracy to distribute less than 500

grams of cocaine in violation of 21 U.S.C. §§ 846 and

841(b)(1)(C); Plascencia-Alvarado pled guilty to conspiracy

to distribute methamphetamine and cocaine in violation of 21

U.S.C. §§ 846 and 841(b)(1)(C); and Torres pled guilty to

conspiracy to distribute less than five grams of methamphetamine and less than 50 grams of a mixture containing

methamphetamine in violation of 21 U.S.C. §§ 846 and

841(b)(1)(C), as well as witness tampering in violation of 18

U.S.C. § 1513(b)(2). In accordance with their respective plea

agreements, Garcia was sentenced to 48 months imprisonment

and Plascencia-Alvarado was sentenced to 60 months imprisonment. Torres was sentenced to 66 months imprisonment,

also pursuant to his plea agreement, and is subject to various

supervised release conditions. Garcia and PlascenciaAlvarado appeal their sentences, and Torres appeals the district court’s imposition of certain supervised release conditions. 

A. Garcia and Plascencia-Alvarado

Garcia’s and Plascencia-Alvarado’s plea agreements are

nearly identical in all material respects. In both plea agreements, the defendants accepted that the maximum statutory

penalty for their offenses is 20 years imprisonment, waived

their right to a trial and agreed that the district court “will consider the factors set forth in Title 18, United States Code, SecAn attorney for the government and the defendant’s attorney . . .

may discuss and reach a plea agreement. . . . If the defendant

pleads guilty or nolo contendere to either a charged offense or a

lesser or related offense, the plea agreement may specify that an

attorney for the government will . . . agree that a specific sentence or sentencing range is the appropriate disposition of the

case, or that a particular provision of the Sentencing Guidelines,

or policy statement, or sentencing factor does or does not apply

(such a recommendation or request binds the court once the court

accepts the plea agreement). 

4130 UNITED STATES v. GARCIA
tion 3553(a), including the sentencing range calculated under

the United States Sentencing Guidelines” but “is not bound by

any recommendation regarding the sentence to be imposed, or

by any calculation or estimation of the Sentencing Guidelines

range offered by the parties, or by the United States Probation

Department.” Garcia agreed that “the appropriate sentence of

imprisonment to be imposed by the Court at the time of sentencing should be within the range of twenty-four (24) to

forty-eight (48) months,” and Plascencia-Alvarado agreed that

the appropriate sentence in his case was “fifty-four (54) to

ninety (90) months.” In light of these stipulated sentencing

ranges, the parties acknowledged that “the Court retains full

discretion to impose a sentence within the range agreed to

above.” (Emphasis added.) 

At sentencing, the district court accepted Garcia’s plea

agreement and calculated the advisory guidelines range.2 In so

doing, the court, over Garcia’s objection, attributed to him

“the amount of cocaine that the Garcia arm of this organization was responsible for,” which was nearly five kilograms.

The district court also granted Garcia a three-point reduction

for acceptance of responsibility, and adjusted downward the

Presentence Report’s criminal history calculation. After

rejecting Garcia’s request for a two-point reduction for his

minor role in the offense, the district court arrived at a guidelines recommended range of 97 to 121 months. However,

because the district court had accepted the plea agreement,

Garcia was ultimately sentenced to 48 months imprisonment.3

Garcia appeals this sentence, arguing that the district court

erred in calculating the guidelines range because it applied the

2During sentencing, the district court acknowledged that its guidelines

calculation “appear[ed] academic . . . because [the court was] going to

accept the 11(c)(1)(C) plea agreement.” 

3

In justifying its sentence at the high end of the stipulated range, the district court explained that the sentence was lower than the guidelines range,

was “consistent with others who were” involved in similar offenses arising

out of the conspiracy, reflected the quality of Garcia’s cooperation with

the government and served to deter others from criminal conduct. 

UNITED STATES v. GARCIA 4131
wrong burden of proof with respect to the drug quantity attributed to Garcia. Had the district court applied the correct evidentiary standard, Garcia argues, it would have arrived at a

lower guidelines calculation and he would have received a 24-

month sentence. 

As with Garcia, the district court accepted PlascenciaAlvarado’s plea agreement and calculated his advisory guidelines range to be 108 to 135 months imprisonment.

Plascencia-Alvarado argued to the district court that he should

receive a 54-month sentence (at the low end of the plea agreement stipulation) because of various equities he believed were

in his favor, including his relationship with his young daughter. He further claimed that other similarly situated defendants

received comparable sentences. The district court rejected

these arguments and sentenced Plascencia-Alvarado to 60

months imprisonment (still at the lower end of his plea agreement’s stipulated range).4

 Plascencia-Alvarado appeals this

sentence as unreasonable in light of the 18 U.S.C. § 3553(a)

factors. 

B. Torres 

Torres’ plea agreement stipulated to a fixed sentence of 66

months and acknowledged “that the Court retains full discretion with regard to the imposition of a term of supervised

release, the conditions of supervised release, fines, forfeiture

or restitution.” At sentencing, the district court accepted the

Rule 11 plea agreement and sentenced Torres to the agreed

upon term. The district court also imposed several conditions

of supervised release, including that Torres (1) “shall submit

to one drug test within 15 days of release from imprisonment

and at least two periodic drug tests thereafter, as determined

4The district court judge explained that Plascencia-Alvarado’s sentence

reflected his role in the conspiracy, was comparable to that imposed upon

others charged with similar conduct and accounted for his contrition and

lack of prior drug trafficking offenses. 

4132 UNITED STATES v. GARCIA
by the court;” (2) “shall submit to mandatory drug testing pursuant to 18 U.S.C. § 3563(a)(5) and 18 U.S.C. § 3583(d)”

(drug testing condition); and (3) “shall provide his probation

officer with access to any requested financial information,

including authorization to conduct credit checks and obtain

copies of defendant’s Federal Income Tax Returns” (financial

disclosure condition). Although Torres did not object to these

conditions at sentencing, he now argues that the district court

erred in imposing them. 

II. Analysis

A. Garcia and Plascencia-Alvarado5

As an initial matter, the government argues that we lack

jurisdiction to review these defendants’ sentences because

they each received a sentence within the range stipulated to in

their plea agreements. We disagree. First, neither Garcia nor

Plascencia-Alvarado expressly waived the right to appeal the

district court’s sentence. Cf. United States v. Joyce, 357 F.3d

921, 922-23 (9th Cir. 2004) (“A defendant’s waiver of his

appellate rights is enforceable if the language of the waiver

encompasses his right to appeal on the grounds raised, and if

the waiver was knowingly and voluntarily made. Plea agreements are contracts between a defendant and the government,

and we generally construe ambiguous language in favor of the

defendant.”) (internal citations omitted). Second, “a valid

guilty plea does not deprive the court of jurisdiction.” United

States v. Castillo, 496 F.3d 947, 949 (9th Cir. 2007) (en

banc). 

[1] On the merits, we affirm because the sentences imposed

by the district court were reasonable. The district court’s sentencing decision was procedurally sound, so we consider the

substantive reasonableness of the sentence under a deferential

5Because both Garcia’s and Plascencia-Alvarado’s challenges implicate

the same dispositive issues, we address their claims jointly. 

UNITED STATES v. GARCIA 4133
abuse-of-discretion standard. Gall v. United States, 552 U.S.

___, 128 S. Ct. 586, 591 (2007). The district court correctly

calculated the guidelines ranges for Garcia and for PlascenciaAlvarado, considered all of the 18 U.S.C. § 3553(a) factors

and documented its reasoning. The court imposed sentences

that were within the ranges stipulated to in their respective

plea agreements and were below the statutory maximums.

Garcia’s contention that the district court applied the incorrect

burden of proof with respect to the drug quantity attributed to

him is without merit. The district court applied the proper burden of proof for factual findings used for sentencing — specifically, the preponderance of the evidence standard. See

United States v. Kilby, 443 F.3d 1135, 1140 (9th Cir. 2006).

Plascencia-Alvarado’s contention that his sentence is unreasonable in light of the § 3553(a) factors is also without merit.

The district court considered those factors and the record does

not establish that the district court abused its discretion in so

doing. See Gall, 552 U.S. ___. 

B. Torres

Torres challenges the district court’s imposition of both the

drug testing and financial disclosure conditions. As to drug

testing, Torres argues that the district court erred in failing to

specify the maximum number of non-treatment drug tests,

thereby impermissibly delegating that authority to Torres’

probation officer. See United States v. Stephens, 424 F.3d

876, 881 (9th Cir. 2005) (holding that “a probation officer

may not decide the . . . extent of the punishment imposed,”

because “[u]nder our constitutional system the right to . . .

impose the punishment provided by law is judicial” (alteration

in original) (internal quotation marks and punctuation omitted)). Torres also argues that the district court abused its discretion in imposing the financial disclosure condition because

it is not “reasonably related to the crime of conviction.” 

We generally defer to the district court in imposing supervised release conditions and review them for an abuse of dis4134 UNITED STATES v. GARCIA
cretion. United States v. Johnson, 998 F.2d 696, 697 (9th Cir.

1993). Because Torres did not object to the conditions of his

supervised release before the sentencing court, however, we

review for plain error. See Stephens, 424 F.3d at 879 n.1. We

conclude there was no error, much less plain error, in the district court’s sentence. 

1. Drug Testing Condition

[2] The district court directed Torres to “submit to one drug

test within 15 days of release from imprisonment and at least

two periodic drug tests thereafter, as determined by the court”

and to “submit to mandatory drug testing pursuant to 18

U.S.C. § 3563(a)(5) and 18 U.S.C. § 3583(d).”

6

 Although recitation of this boilerplate drug testing language established the

minimum number of drug tests to which Torres would be subject, it does not appear to establish a maximum number of

such tests. However, as we held in Stephens, “the [sentencing]

courts [have] the responsibility of stating the maximum number of [drug] tests to be performed or to set a range for the

permissible number of tests.” 424 F.3d at 883 (concluding

that “while the district court itself determined the minimum

number of tests to which [the defendant] would be required to

submit, the court erred when it failed to state the maximum

number of non-treatment drug tests the probation officer

could impose”). Unlike in Stephens, where the district court

expressly delegated the authority to set a maximum number

of non-treatment drug tests to the probation officer, id. at 882,

in this case the district court made no such delegation. None6

18 U.S.C. § 3563(a)(5) applies to drug testing conditions of probation,

whereas § 3583(d) applies to a condition of supervised release. Both statutory sections provide that courts shall order 

as an explicit condition of [probation or supervised release,] that

the defendant refrain from any unlawful use of a controlled substance and submit to [a] drug test within 15 days of release on

[probation or supervised release] and at least 2 periodic drug tests

thereafter (as determined by the court) for use of a controlled

substance. 

UNITED STATES v. GARCIA 4135
theless, because the district court did not set a maximum, Torres reasonably argues that the probation officer could be

understood as having this authority, which would clearly violate Stephens. 

[3] In United States v. Maciel-Vasquez, 458 F.3d 994 (9th

Cir. 2006), cert. denied, 127 S. Ct. 2097 (2007), the defendant

challenged a drug testing condition of supervised release that

required him to “participate in outpatient substance abuse

treatment and submit to drug and alcohol testing as instructed

by the probation officer.” Id. at 996 (internal quotation marks

omitted). We observed that this condition would be permissible if imposed incidental to a drug treatment program, but

would be improper under Stephens if it were to be understood

as granting “the probation officer authority to require testing

apart from any treatment program.” Id. However, we refused

to determine the purpose of the drug testing because the

defendant did not object at sentencing and could not establish

any plain error. Id. Unlike in Maciel-Vasquez, the government

here concedes that “the Probation Office may conduct only

the minimum three tests allowed for in the order.” Indeed, it

is clear that district courts that seek to impose more than the

statutory minimum of three drug tests must explicitly do so at

sentencing. See United States v. Lewandowski, 372 F.3d 470,

471 (1st Cir. 2004) (per curiam). Given the government’s

concession, we construe the district court’s supervised release

condition as implicitly limiting the maximum number of drug

tests to three. Torres must submit to at least and at most “one

drug test within 15 days of release from imprisonment and . . .

two periodic drug tests thereafter.” Should the probation

office believe more drug tests are necessary, it would have to

request a modification from the district court. Any such modification would of course have to comply with Stephens. Thus

construed, there is no error in the district court’s drug testing

condition. 

4136 UNITED STATES v. GARCIA
2. Financial Disclosure Condition

[4] District courts are encouraged to impose a financial disclosure condition when they require a defendant to pay restitution. See U.S.S.G. § 5D1.3(d)(3) (instructing that where

“the court imposes an order of restitution, forfeiture, or notice

to victims, or orders the defendant to pay a fine,” it should

also impose “a condition requiring the defendant to provide

the probation officer access to any requested financial information”). However, a district court may impose such a condition even without ordering restitution, so long as the condition

satisfies certain criteria.7 First, it must be “reasonably related

to the factors set forth in 18 U.S.C. § 3553(a).” United States

v. Gallaher, 275 F.3d 784, 793 (9th Cir. 2001); see also

United States v. Brown, 402 F.3d 133, 137 (2d Cir. 2005)

(“[T]he Guidelines recommend a financial disclosure special

condition where the court imposes a fine or restitution. By its

own terms, however, this policy statement does not preclude

a court from requiring financial disclosure in other ‘appropriate’ situations.”) (internal citation omitted)). Second, it must

“involve no greater deprivation of liberty than is reasonably

necessary. . . .” United States v. Fellows, 157 F.3d 1197, 1204

(9th Cir. 1998). Finally, the condition “must be consistent

with pertinent policy statements of the Sentencing Commission.” Id.

[5] The financial disclosure requirement imposed on Torres

satisfies all three criteria, and the district court did not commit

plain error by imposing the condition. Torres was involved in

a large scale drug conspiracy as a drug supplier. Torres also

has a history of drug abuse. Clearly, if Torres is receiving or

spending significant funds in suspicious ways, the probation

office would have reason to believe he has reengaged with

drug trafficking or use and would so report to the district

7Moreover, contrary to Torres’ argument otherwise, the condition need

not “be related to the offense of conviction.” United States v. Wise, 391

F.3d 1027, 1031 (9th Cir. 2004). 

UNITED STATES v. GARCIA 4137
court. Requiring Torres to disclose financial information, at

the very least, reflects appreciation of “the nature and circumstances of the offense and [his] history and characteristics”

and serves “to protect the public from further crimes.” 18

U.S.C. §§ 3553(a)(1), (a)(2)(C). And the probation office’s

monitoring is no greater than necessary to achieve these ends.

[6] We join our sister circuits in concluding that certain

defendants who have been convicted of drug trafficking

offenses may properly be required to disclose the details of

their personal finances as a condition of supervised release.

See Brown, 402 F.3d at 137 (affirming financial disclosure

condition imposed on defendant convicted of drug trafficking

in part because “given this particular defendant’s personal

characteristics and history, the financial disclosure requirement is an effective monitoring — and hence deterring —

device” and because “monitoring [the defendant’s] finances

will . . . serve to protect the public from ‘further crimes of the

defendant’ ”) (quoting 18 U.S.C. § 3553(a)(2)(C)); United

States v. Melendez-Santana, 353 F.3d 93, 107 (1st Cir. 2003)

(affirming financial disclosure condition imposed on a similarly situated defendant because it is related to the characteristics of the defendant and deters future criminal conduct),

overruled on other grounds by U.S. v. Padilla, 415 F.3d 211

(1st Cir. 2005) (en banc); United States v. Behler, 187 F.3d

772, 780 (8th Cir. 1999) (affirming financial disclosure condition because “the district court understood that money and

greed were at the heart of [the defendant’s] drug distribution

offenses and believed that monitoring [the defendant’s] financial situation would aid in detecting any return to his former

lifestyle of drug distribution”). Therefore the district court did

not plainly err in imposing this condition. 

III. Conclusion

Garcia’s and Plascencia-Alvarado’s sentences are

AFFIRMED. Torres’ sentence (including the conditions of

supervised release) is AFFIRMED. 

4138 UNITED STATES v. GARCIA