United States v. Guadalupe Diaz-Cruz ( 2014 )

FILED
NOT FOR PUBLICATION DEC 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50621
Plaintiff - Appellee, D.C. No. 3:13-cr-02485-BEN
v.
MEMORANDUM*
GUADALUPE DIAZ-CRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted December 9, 2014**
Before: WALLACE, LEAVY, and BYBEE, Circuit Judges.
Guadalupe Diaz-Cruz appeals from the district court’s judgment and
challenges the 36-month sentence imposed following his guilty-plea conviction for
being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Diaz-Cruz contends that his sentence is substantively unreasonable because
the court failed to grant a downward departure under U.S.S.G. § 4A1.3(b), which
authorizes the district court to depart when the defendant’s criminal history
category overstates the seriousness of his criminal history. Our review of a district
court’s decision whether to depart under section 4A1.3 is limited to determining
whether the court imposed a substantively reasonable sentence. See United States
v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011). The district court did not abuse its
discretion in imposing Diaz-Cruz’s sentence. See Gall v. United States, 552 U.S.
38, 51 (2007). The record reflects that the court varied upwards from the parties’
sentencing recommendation in light of Diaz-Cruz’s history of driving under the
influence and immigration violations. The sentence, 12 months above the top of
the advisory Guidelines range, is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) sentencing factors and the totality of the circumstances. See id.AFFIRMED.
2 13-50621