United States v. Julio Torres-Martinez ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50273
Plaintiff-Appellee, D.C. No. 3:17-cr-00883-LAB
v.
MEMORANDUM*
JULIO CESAR TORRES-MARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Julio Cesar Torres-Martinez appeals from the district court’s judgment and
challenges the 16-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 Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
For the first time on appeal, Torres-Martinez argues that the government
breached the terms of the parties’ plea agreement by failing to recommend a
sentence in the “middle-range” of the Guidelines. The government argues that
Torres-Martinez waived this claim by failing to raise it in the district court. We
decline to decide whether Torres-Martinez waived his breach claim because, even
if merely forfeited, Torres-Martinez cannot show plain error. See United States v.
Whitney, 673 F.3d 965, 970 (9th Cir. 2012). The government recommended a
sentence of ten months, which was in the “middle range” of the parties’ Guidelines
calculation, as Torres-Martinez’s sentencing memorandum implicitly
acknowledged. Moreover, even treating the ten month recommendation as a
breach, it did not affect Torres-Martinez’s substantial rights because the record
makes clear that there is no reasonable probability that the court would have
imposed a different sentence absent the breach. See United States v. Gonzalez-
Aguilar, 718 F.3d 1185, 1187 (9th Cir. 2013).
Torres-Martinez next contends that the district court procedurally erred
when it denied the parties’ joint request for a two-level departure under U.S.S.G.
§ 5K1.3, and imposed a substantively unreasonable sentence. We do not review
the procedural correctness of a district court’s departure decision; rather, we
review the substantive reasonableness of the ultimate sentence under an abuse of
discretion standard. See United States v. Rosales-Gonzales, 801 F.3d 1177, 1180
2 17-50273
(9th Cir. 2015). The court did not abuse its discretion. It properly considered
Torres-Martinez’s immigration history, including his three prior illegal reentry
offenses. See id. at 1184. The 16-month sentence is substantively reasonable in
light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the
circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFRIMED.
3 17-50273