United States v. Hector Orozco ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-50073
Plaintiff-Appellee, D.C. No. 3:17-cr-00907-WQH
v.
MEMORANDUM*
HECTOR BENJAMIN OROZCO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted September 12, 2018**
Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.
Hector Benjamin Orozco appeals from the district court’s judgment and
challenges the 34-month sentence imposed following his jury-trial conviction for
attempted reentry of a removed alien, 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 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).
Orozco argues that the district court erred by referencing an incorrect
assertion contained in the presentence report (“PSR”) when ruling on his request
for an acceptance of responsibility adjustment under U.S.S.G. § 3E1.1. We review
for plain error. United States v. Christensen, 732 F.3d 1094, 1101 (9th Cir. 2013).
As the government concedes, the district court should not have referenced or relied
upon the retracted statement from the PSR. See United States v. Alvarado-
Martinez, 556 F.3d 732, 734-35 (9th Cir. 2009) (due process requires that
defendant be sentenced based on accurate information).
Nevertheless, Orozco has not established plain error. The record
demonstrates that the district court relied on numerous, uncontested facts when
ruling on Orozco’s request for an acceptance of responsibility reduction, and the
record as a whole indicates that Orozco did not meet his burden of showing
entitlement to that reduction. See United States v. Rodriguez, 851 F.3d 931, 949
(9th Cir. 2017). Accordingly, there is no reasonable probability that Orozco would
have received a different sentence if the district court had not referenced the
erroneous statement from the PSR, and any error did not prejudice his substantial
rights. See Christensen, 732 F.3d at 1101-02.
AFFIRMED.
2 18-50073