UNITED STATES v. REYNAGA (2019)

MEMORANDUM **

Isai Uriel Reynaga appeals from the district court’s judgment and challenges the 30-month sentence and 3 conditions of supervised release imposed upon his guilty-plea conviction for bringing in aliens without presentation and aiding and abetting, in violation of 8 U.S.C. § 1324(a)(2)(B)(iii) and 18 U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and vacate and remand in part.

Reynaga first asserts that his trial counsel was ineffective by failing to advocate meaningfully for a favorable sentence. “As a general rule, we do not review challenges to the effectiveness of defense counsel on direct appeal.” United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). Neither exception to this general rule applies here. See id. at 1259-60. In particular, the record here is not sufficiently developed as to “what counsel did, why it was done, and what, if any, prejudice resulted.” United States v. Benford, 574 F.3d 1228, 1231 (9th Cir. 2009). Reynaga may raise this claim in a 28 U.S.C. § 2255 proceeding. See United States v. McGowan, 668 F.3d 601, 606 (9th Cir. 2012).

The government concedes, and we agree, that standard supervised release conditions 4, 5, and 13 in the written judgment are unconstitutionally vague, see United States v. Evans, 883 F.3d 1154, 1162-64 (9th Cir.), cert. denied, ––– U.S. ––––, 139 S.Ct. 133, 202 L.Ed.2d 82 (2018), and that condition 4, which requires Reynaga to “support his ․ dependents,” should be stricken because Reynaga has no dependents. On remand, the district court should strike condition 4 and modify conditions 5 and 13 consistent with Evans.

Reynaga’s unopposed requests to take judicial notice are granted.

AFFIRMED in part; VACATED and REMANDED in part.