                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            MAY 30 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No.   14-50518

              Plaintiff-Appellee,                D.C. No.
                                                 5:14-cr-00020-VAP-1
 v.

MATTHEW FRAZER, AKA Matthew                      MEMORANDUM*
Wade Frazer,

              Defendant-Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    Virginia A. Phillips, Chief Judge, Presiding

                        Argued and Submitted May 12, 2017
                               Pasadena, California

Before: CHRISTEN and WATFORD, Circuit Judges, and SOTO,** District Judge.

      1. Given the convoluted state of the record, we vacate Matthew Frazer’s

sentence and remand for resentencing.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable James Alan Soto, United States District Judge for the
District of Arizona, sitting by designation.
                                                                           Page 2 of 3
      When imposing Frazer’s sentence, the court orally pronounced a sentence of

276 months in prison. When allocating his term of imprisonment between the two

counts, however, the court imposed 240 months on Count One and 36 months on

Count Two, with the terms to be served “concurrently.” That allocation suggests a

total sentence of 240 months, rather than 276 months as the court initially stated.

The court’s oral pronouncement of the sentence is therefore ambiguous.

      The court issued a series of written judgments, which ordinarily could be

relied upon to clarify an ambiguous oral pronouncement of the sentence. United

States v. Garcia, 37 F.3d 1359, 1368 (9th Cir. 1994). But the written judgments

are themselves confusing, and they were issued outside the 14-day time limit

permitted under Federal Rule of Criminal Procedure 35(a) for correction of

arithmetical, technical, or other clear errors. Faced with this record, we think the

wisest course is to vacate Frazer’s sentence and remand for resentencing, which

will allow the district court to eliminate any doubt about the sentence it intended to

impose. See United States v. Napier, 463 F.3d 1040, 1043–44 (9th Cir. 2006).

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

supervised release condition requiring Frazer to obtain court permission before

contacting minor members of his family. Frazer’s reliance on United States v.

Wolf Child, 699 F.3d 1082 (9th Cir. 2012), is misplaced. In that case, the
                                                                           Page 3 of 3
defendant had sexually abused a 16-year-old non-family member. Based on that

incident alone, the court imposed a condition of supervised release prohibiting the

defendant from having any contact with his own daughters, who at the time were

below the age of three. There was no indication that the defendant posed a threat

to his own children, so the district court erred by failing to follow enhanced

procedural safeguards before imposing the condition. Id. at 1094. Frazer, on the

other hand, repeatedly sexually abused his own minor daughter, so the court was

correct to be concerned about the risk he posed to minor children in his family,

both now and in the future. Furthermore, the presentence materials submitted to

the court warned that Frazer’s wife was not appropriately protecting their daughter

from Frazer. The district court adopted these facts and discussed the factors to be

considered in imposing a supervised release condition, including the nature and

circumstances of the offenses and the history and circumstances of the defendant.

On this record, the district court satisfied the requirements for imposition of

Frazer’s supervised release condition.

      AFFIRMED in part; VACATED and REMANDED in part.
