United States v. Jaime Espinoza-Medina ( 2015 )

FILED
NOT FOR PUBLICATION NOV 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10174
Plaintiff - Appellee, D.C. No. 4:13-cr-00767-CKJ-JR-1
v.
MEMORANDUM*
JAIME ESPINOZA-MEDINA, AKA
Jaime Espinosa-Medina,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted November 17, 2015**
San Francisco, California
Before: McKEOWN, RAWLINSON, and DAVIS,*** Circuit Judges.
*
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).
***
The Honorable Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.
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Jaime Espinoza-Medina appeals his sentence of 36 months’ imprisonment
for illegal reentry after deportation in violation of 8 U.S.C. § 1326. Espinoza-
Medina asserts that the district court judge committed substantive and procedural
error when she applied an eight-level sentencing departure.
1. When reviewing a sentence imposed by a district court, we first determine
whether procedural error occurred, and then review the sentence for substantive
reasonableness. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en
banc). We must give “significant deference” to a district court’s sentencing
decision, reviewing for abuse of discretion. United States v. Ressam, 679 F.3d
1069, 1086 (9th Cir. 2012) (en banc), as amended.
2. The district court judge did not rely on clearly erroneous facts, and thus
did not commit procedural error. See United States v. Vanderwerfhorst, 576 F.3d
929, 935-36 (9th Cir. 2009). Rather, the district court judge cited only the facts
from Espinoza-Medina’s state court plea that she found reliable. The district court
judge also permissibly relied on Espinoza-Medina’s narcotics arrest. See id. at 935
(explaining that “hearsay evidence of unproved criminal activity not passed on by a
court . . . may be considered in sentencing”) (citations and alteration omitted).
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3. The district court judge adequately explained her reasons for departing
from the Guidelines Sentencing Range. See United States v. Ellis, 641 F.3d 411,
422 (9th Cir. 2011). Prior to imposing Espinoza-Medina’s sentence, the district
court judge considered the parties’ arguments on whether any departures were
appropriate, and the parties also submitted sentencing memoranda. A district court
judge does not commit procedural error when she listens to arguments on the
applicability of departures and considers the arguments against the backdrop of the
§ 3553(a) factors. See Carty, 520 F.3d at 995.
4. The 22-month increase resulting from the departure did not render
Espinoza-Medina’s sentence substantively unreasonable. See, e.g., United States v.
Mohamed, 459 F.3d 979, 988-89 (9th Cir. 2006) (affirming a sentence where
departures resulted in an increase of over 40 months). Here, the judge articulated
that a four-level enhancement did not capture the seriousness of an offense that
involved a 19-year-old girl being shot multiple times. In addition, the Sentencing
Guidelines calculation did not account for the narcotics arrest at all. It is within a
district court judge’s discretion to apply departures when the judge is of the view
that the seriousness of the offense is not captured by the Sentencing Guidelines
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enhancement, and when a defendant’s criminal history is not accurately reflected.
See Ellis, 641 F.3d at 420-21.
It was within the district court judge’s discretion to apply sentencing
departures rather than increasing the criminal history category. See id. at 420-22.
The mitigating factors urged by Espinoza-Medina did not render his sentence
substantively unreasonable. See id. at 423 (holding a sentence substantively
reasonable where the district court judge engaged in a “rational and meaningful
consideration” of the § 3553(a) factors) (citation omitted).
5. “We REMAND only for the district court to correct the judgment of
conviction by removing the reference to 8 U.S.C. § 1326(b).” United States v.
Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009) (citation omitted).
AFFIRMED and REMANDED.
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