United States v. Juan Pena-Torres ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 3 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 18-10043
18-10044
Plaintiff-Appellee,
D.C. Nos. 4:17-cr-01085-DCB
v. 4:17-cr-50129-DCB
JUAN ANTONIO PENA-TORRES, a.k.a.
Juan Antonio Pena-Torres, a.k.a. Juan Pena MEMORANDUM*
Torres, a.k.a. Juan A. Pena Torres, a.k.a.
Juan Pena-Torres,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted November 27, 2018**
Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.
In these consolidated appeals, Juan Antonio Pena-Torres appeals the 15-
month sentence imposed following his guilty-plea conviction for reentry of a
removed alien, in violation of 8 U.S.C. § 1326, and the 6-month consecutive
*
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).
sentence imposed upon revocation of supervised release. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
Pena-Torres contends that the district court erred procedurally by failing to
address and explain why it was rejecting his mitigating arguments, basing the
illegal reentry sentence exclusively on the need for deterrence, and failing to
explain the sentence imposed for the supervised release violation. We review for
plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010), and conclude that there is none. The record reflects that the district court
explicitly acknowledged Pena-Torres’s mitigating arguments, but concluded that
they did not warrant a downward variance from the Guideline range. Rather, the
court believed that, in light of the need for deterrence and Pena-Torres’s criminal
history, consecutive within-Guidelines sentences were warranted. Pena-Torres has
not shown a reasonable probability that he would have received a lower sentence
had the district court discussed the 18 U.S.C. § 3553(a) sentencing factors or his
mitigating arguments in greater detail. See United States v. Dallman, 533 F.3d
755, 762 (9th Cir. 2008).
Pena-Torres also contends that the sentences are substantively unreasonable.
The district court did not abuse its discretion. See Gall v. United States, 552 U.S.
38, 51 (2007). The sentences are substantively reasonable in light of the section
3553(a) sentencing factors and the totality of the circumstances. See Gall, 552
2 18-10043 & 18-10044
U.S. at 51.
AFFIRMED.
3 18-10043 & 18-10044