United States v. Jose De La Torre-Ventura ( 2015 )

FILED
NOT FOR PUBLICATION MAY 18 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50397
Plaintiff - Appellee, D.C. No. 3:11-cr-04829-BEN
v.
MEMORANDUM*
JOSE MANUEL DE LA TORRE-
VENTURA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Jose Manuel De La Torre-Ventura appeals from the district court’s judgment
and challenges the 18-month sentence imposed upon revocation of probation. 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).
De La Torre-Ventura contends that the district court imposed an above-
Guidelines sentence based on clearly erroneous facts, namely, an assumption that
he drove without a license or insurance and that he still had an alcohol problem and
was a danger to the public. We agree that the record does not support the district
court’s suggestion that De La Torre-Ventura did not have insurance or a license at
the time he was pulled over for a traffic violation. However, the court did not
impose sentence on this basis. See United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc). Furthermore, the court’s concern over De La Torre-
Ventura’s alcohol problem and propensity of recidivism was supported by his
history of driving under the influence.
De La Torre-Ventura next contends that his sentence is substantively
unreasonable. The district court did not abuse its discretion in imposing De La
Torre-Ventura’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The
18-month sentence is substantively reasonable in light the of the 18 U.S.C.
§ 3553(a) sentencing factors and the totality of the circumstances. See Gall, 552
U.S. at 51; United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006).
AFFIRMED.
2 14-50397