United States v. Gabriel Fuentes-Rojas ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAR 18 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 14-50165
Plaintiff - Appellee, D.C. No. 3:13-cr-02563-JLS
v.
MEMORANDUM*
GABRIEL FUENTES-ROJAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted March 10, 2015**
Before: FARRIS, WARDLAW, and PAEZ, Circuit Judges.
Gabriel Fuentes-Rojas appeals from the district court’s judgment and
challenges the 27-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).
Fuentes-Rojas contends that the district court procedurally erred by (1)
relying on an improper sentencing factor; (2) focusing on deterrence to the
exclusion of the other 18 U.S.C. § 3553(a) factors, and (3) failing to address
adequately his policy argument. We review for plain error, see United States v.
Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and find no error. The
record reflects that the district court properly considered the 18 U.S.C. § 3553(a)
sentencing factors and did not rely on an impermissible factor. See United States v.
Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc) (“The district court need not
tick off each of the [sentencing] factors to show that it has considered them.”). In
addition, the district court listened to Fuentes-Rojas’s mitigating arguments and
recognized its discretion to vary from the Guidelines on policy grounds. See
United States v. Ayala-Nicanor, 659 F.3d 744, 752-753 (9th Cir. 2011).
Fuentes-Rojas also contends that his below-Guidelines sentence is
substantively unreasonable. The district court did not abuse its discretion in
imposing Fuentes-Rojas’s sentence. See Gall v. United States, 526 U.S. 38, 51
(2007). The sentence is substantively reasonable in light of the totality of
circumstances and the section 3553(a) sentencing factors, including the need to
deter. See Gall, 552 U.S. at 51.
AFFIRMED.
2 14-50165