United States v. Felipe Mendoza-Zazueta , 693 F. App'x 557 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 16-50089
16-50090
Plaintiff-Appellee,
D.C. Nos. 3:15-cr-02291-DMS
v. 3:16-cr-07007-DMS
FELIPE MENDOZA-ZAZUETA, a.k.a.
Reyes Cintero, a.k.a. Reyes Cortez-Ayon, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
In these consolidated appeals, Felipe Mendoza-Zazueta appeals from the
district court’s judgments and challenges the sentences imposed following his
guilty-plea conviction for being a removed alien found in the United States, in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violation of 8 U.S.C. § 1326, and admitted violation of supervised release. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Mendoza-Zazueta first contends that the district court procedurally erred by
failing to calculate the applicable supervised release term as part of its Guidelines
calculation for the reentry conviction. Although a district court’s failure to
calculate the applicable Guidelines range may constitute plain error, see United
States v. Hammons, 558 F.3d 1100, 1105 (9th Cir. 2009), it is clear from the record
that the district court was aware of the applicable supervised release Guidelines
range. Contrary to Mendoza-Zazueta’s argument on appeal, the Presentence
Investigation Report correctly calculated the advisory Guidelines range for
supervised release for this Class C felony. See U.S.S.G. § 5D1.2(a)(2). Moreover,
the district court’s imposition of a term of supervised release for further deterrence
is consistent with U.S.S.G. § 5D1.1(c), with which we presume the district court
was familiar. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en
banc).
Mendoza-Zazueta next contends that the district court procedurally erred by
failing to provide him with an opportunity to allocute prior to the court’s
imposition of the supervised release revocation sentence. This argument is
unsupported by the record. In the combined sentencing hearing, the district court
invited Mendoza-Zazueta to address the court immediately following arguments
2 16-50089 & 16-50090
from Mendoza-Zazueta’s counsel regarding sentencing on both the reentry
conviction and the supervised release violation and prior to the court’s imposition
of sentences for both. Thus, the court provided Mendoza-Zazueta with “an
opportunity to make a statement and present any information in mitigation,” before
the sentence was imposed. See Fed. R. Crim. P. 32.1(b)(2)(E); see also United
States v. Allen, 157 F.3d 661, 666 (9th Cir. 1998).
AFFIRMED.
3 16-50089 & 16-50090