United States v. Pablo Martinez-Gutierrez , 606 F. App'x 366 ( 2015 )

FILED
NOT FOR PUBLICATION JUN 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50122
Plaintiff - Appellee, D.C. No. 3:13-cr-03251-DMS-1
v.
MEMORANDUM*
PABLO MARTINEZ-GUTIERREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted January 29, 2015**
Before: HUG, FARRIS, and CANBY, Circuit Judges.
Pablo Martinez-Gutierrez appeals from the district court’s judgment and
challenges the 48-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).
Martinez-Gutierrez contends that the district court erred by considering his
prior sentences when determining his sentence in the instant case. The district
court did not err. The sentences for Martinez-Gutierrez’s prior § 1326 convictions
are part of his history and characteristics and are relevant to choosing a sentence
that will adequately deter future criminal conduct. The defendant’s history and
characteristics and the need for the sentence to provide adequate deterrence are
amongst the 18 U.S.C. § 3553(a) factors a court is to consider when determining
the appropriate sentence. See 18 U.S.C. § 3553(a)(1), (a)(2); United States v.
Carty, 520 F.3d 984, 991 (9th Cir. 2008) (en banc). Thus, it is permissible for a
court to consider whether a previous sentence provided sufficient deterrence when
determining the sentence for a new offense. See United States v. Higuera-Llamos,
574 F.3d 1206, 1211-12 (9th Cir. 2009).
To the extent Martinez-Gutierrez contends that the district court was
required to impose a sentence within the range calculated using a fast-track
departure, he is incorrect. Consistent with the Sentencing Guidelines, the district
court granted the request for a fast-track departure and calculated the resulting
advisory sentencing range. However, the Sentencing Guidelines are only one
factor to be taken into account when selecting the appropriate sentence, and the
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district court had the discretion to vary upwards from the sentencing range that
resulted from the fast-track departure. See Carty, 520 F.3d at 991, 993.
Martinez-Gutierrez contends that the 48-month sentence is substantively
unreasonable. The sentence is not substantively unreasonable in light of the §
3553(a) factors and the totality of the circumstances. See Gall v. United States,
552 U.S. 38, 51 (2007). This includes not only Martinez-Gutierrez’s medical
needs and the age and nature of his prior crime of violence, but also the need for
deterrence, his immigration history, and his other prior convictions and sentences.
See United States v. Orozco-Acosta, 607 F.3d 1156, 1167 (9th Cir. 2010) (holding
that sentence was not too high despite age of prior conviction where higher
sentence was necessary to deter defendant from subsequent re-entry); United States
v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (holding that district court
did not place undue weight on need for deterrence where defendant repeatedly
entered the United States illegally); cf. United States v. Higuera-Llamos, 574 F.3d
1206, 1211-12 (9th Cir. 2009) (holding that increased sentence was substantively
reasonable where previous sentence for illegal re-entry was insufficient to deter the
appellant’s criminal conduct).
AFFIRMED.
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