United States v. Antonio Vargas-Soriano ( 2012 )

FILED
NOT FOR PUBLICATION NOV 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 11-50472
)
Plaintiff – Appellee, ) D.C. No. 3:10-cr-04831-BTM-1
)
v. ) MEMORANDUM*
)
ANTONIO JOSE )
VARGAS-SORIANO, )
)
Defendant – Appellant. )
)
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted October 9, 2012
Pasadena, California
Before: EBEL,** FERNANDEZ, and BERZON, Circuit Judges.
Antonio Jose Vargas-Soriano appeals his sentence for attempted entry after
removal. See 8 U.S.C. § 1326(a). We affirm.
(1) Vargas first asserts that he did not receive notice that the district court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David M. Ebel, Senior United States Circuit Judge for the
Tenth Circuit, sitting by designation.
would consider departing from its calculated guideline range. See Fed. R. Crim. P.
32(h). We disagree. Because Vargas did not raise the issue at the district court, we
review for plain error. See United States v. Cruz-Perez, 567 F.3d 1142, 1146 &
n.1 (9th Cir. 2009); United States v. Evans-Martinez, 530 F.3d 1164, 1167 (9th
Cir. 2008). There was no plain error. At the start of the proceeding, the district
court did inform Vargas of the possibility that it would depart,1 and the government
had given notice that it would seek a sentence above the calculated guideline range
at the time it filed its papers,2 but Vargas neither sought a continuance3 nor gave
any indication that he was surprised or discommoded under the circumstances.
(2) Vargas then procedurally attacks the details of the district court’s
departure discussion. We reject that attack on two separate bases.
(a) On this record, the district court did not procedurally err4 when
it decided to depart on the ground that the seriousness of Vargas’s prior conviction
1
See United States v. Hernandez, 251 F.3d 1247, 1251 n.4 (9th Cir.),
amended by 280 F.3d 1216 (9th Cir. 2001).
2
See United States v. Hahn, 557 F.3d 1099, 1102 (9th Cir. 2009) (per
curiam); United States v. Hinojosa-Gonzalez, 142 F.3d 1122, 1123 (9th Cir. 1998)
(per curiam).
3
We note that the district court offered him the opportunity to request a
continuance, but he declined.
4
United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
2
for child abuse would otherwise be understated in the unlawful entry offense level
calculation,5 and on the ground that dismissal of the related charge of aggravated
identity theft6 also resulted in an understatement of the seriousness of the offense
conduct at hand.7 To the extent that Vargas actually intends to suggest that the
district court did not adequately explain the seven-month departure, we disagree
because it was clearly and extensively explained.8 Moreover, giving proper
deference to the district court, we perceive nothing unreasonable in the extent of
the departure.9
(b) If we limit our consideration of the propriety of the departure to
substantive reasonableness alone,10 we, again, perceive nothing substantively
unreasonable in the extent of the departure.11
AFFIRMED.
5
See USSG §2L1.2(b)(1) & comment. (n.7).
6
See 18 U.S.C. § 1028A.
7
See USSG §5K2.21.
8
See Carty, 520 F.3d at 992.
9
See id. at 993.
10
See United States v. Vasquez-Cruz, No. 11-10467, slip op. 10239,
10245–51 (9th Cir. Aug. 30, 2012); United States v. Ellis, 641 F.3d 411, 421 (9th
Cir. 2011); United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006).
11
See Carty, 520 F.3d at 993.
3