United States v. Victor Gonzalez Vazquez , 588 F. App'x 596 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30331
Plaintiff - Appellee, D.C. No. 2:10-cr-00324-RAJ-1
v.
MEMORANDUM*
VICTOR M GONZALEZ VAZQUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted December 11, 2014**
Seattle, Washington
Before: McKEOWN, TALLMAN, and OWENS, Circuit Judges.
Victor Gonzalez Vazquez appeals the district court’s reimposition of a 144-
month sentence (given a Guidelines range of 151-188 months) on remand following
this court’s holding that the district court improperly considered Gonzalez Vazquez a
*
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).
criminal history category two in his first sentencing (thus leading to a Guidelines range
of 210-262 months). See United States v. Gonzalez Vazquez, 719 F.3d 1086 (9th Cir.
2013). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we
affirm.
We reject Gonzalez Vazquez’s argument that the district court’s second sentence
was vindictive. The Pearce presumption of vindictiveness does not apply because the
district court did not impose a higher sentence on remand. North Carolina v. Pearce,
395 U.S. 711 (1969); United States v. Horob, 735 F.3d 866, 870-71 (9th Cir. 2013)
(holding that the Pearce presumption does not apply where the district court reimposes
a sentence of the same duration). Nor has Gonzalez Vazquez proffered any evidence
of actual vindictiveness. Neither the fact that the district court reimposed the same
sentence on remand nor the district court’s comment at Gonzalez Vazquez’s first
sentencing regarding his veracity at trial constitutes evidence of actual vindictiveness.
Gonzalez Vazquez’s arguments that his sentence was substantively unreasonable
and that the district court committed procedural error also fail. The district court did
not abuse its discretion in imposing a 144-month sentence. This sentence is below the
Guidelines range of 151-188 months that Gonzalez Vazquez agreed was appropriate
at the second sentencing. See United States v. Ressam, 679 F.3d 1069, 1086 (9th Cir.
2012) (en banc) (stating that the substantive reasonableness of a sentence is reviewed
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for abuse of discretion). Because the district court’s reasons for reimposing the 144-
month sentence were sufficient, there was no plain error. See United States v.
Hammons, 558 F.3d 1100, 1103, 1105 (9th Cir. 2009) (noting that a sentencing court
must consider all of the factors under 18 U.S.C. § 3553(a) and state reasons for
imposing a sentence, and that procedural errors are reviewed for plain error where a
defendant fails to object at sentencing). Here, the district court stated the accurate
Guidelines range, offense level, and criminal history category, and he listed the
relevant § 3553(a) factors. The district court also incorporated all of the comments
made at Gonzalez Vazquez’s first sentencing hearing. At the first sentencing hearing,
one of the district court’s proffered reasons for such a significant downward departure
was “the circumstances of why you find yourself in the range of a level two,” in
reference to the minor nature of the driving on a suspended license offense that led
Gonzalez Vazquez to be considered a criminal history category two. The district court
adequately articulated his reasons for reimposing a sentence of 144 months.
AFFIRMED.
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