United States v. Sergio Martinez ( 2010 )

FILED
NOT FOR PUBLICATION APR 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50357
Plaintiff - Appellee, D.C. No. 2:09-cr-00120-AHM
v.
MEMORANDUM *
SERGIO ALEJANDRO AVALOS
MARTINEZ, AKA Sergio A. Avalos,
AKA Jose Campos, AKA Sergio
Alejandro Avalos,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Sergio Alejandro Avalos Martinez appeals from the 60-month sentence
*
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).
NC/Research
imposed following his guilty-plea conviction for being an illegal alien found in the
United States following deportation, in violation of 8 U.S.C. § 1326(a). We have
jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the
judgment.
Avalos Martinez contends that the district court procedurally erred at
sentencing by failing to address his nonfrivolous arguments in support of a lower
sentence. Avalos Martinez further contends that his sentence is substantively
unreasonable because: (1) the applicable Guidelines range overemphasizes the
seriousness of his criminal history; and (2) the sentence results in unwarranted
sentence disparities. The record reflects that the district court did not procedurally
err, and that, in light of the totality of the circumstances, the sentence below the
Guidelines range is not substantively unreasonable. See United States v. Carty,
520 F.3d 984, 991-93 (9th Cir. 2008) (en banc); see also United States v. Vasquez-
Landaver, 527 F.3d 798, 804-05 (9th Cir. 2008) (holding that the district court did
not err by declining to impose the sentence that the defendant would have received
pursuant to a fast-track plea agreement that the defendant had rejected).
We remand the case to the district court with instructions that it delete from
the judgment the reference to 8 U.S.C. § 1326(b)(2). See United States v. Rivera-
NC/Research 2 09-50357
Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000).
AFFIRMED; REMANDED to correct the judgment.
NC/Research 3 09-50357