United States v. Jose Ortiz-Varela , 468 F. App'x 798 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 23 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50280
Plaintiff - Appellee, D.C. No. 3:11-cr-00013-LAB
v.
MEMORANDUM *
JOSE ORTIZ-VARELA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted February 21, 2012 **
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Jose Ortiz-Varela appeals from the 46-month sentence imposed following
his guilty-plea conviction for being a deported alien found in the United States, in
violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
*
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).
we affirm.
Ortiz-Varela contends the district court procedurally erred by placing
excessive weight on the need for deterrence, to the exclusion of the other 18 U.S.C.
§ 3553(a) sentencing factors. The record reflects that the district court properly
considered the section 3553(a) sentencing factors, provided ample explanation for
the sentence, and did not otherwise procedurally err. See United States v. Carty,
520 F.3d 984, 992-93 (9th Cir. 2008) (en banc); United States v. Gutierrez-
Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (“The weight to be given the [section
3553(a)] factors in a particular case is for the discretion of the district court.”).
Ortiz-Varela also contends the above-Guidelines sentence is substantively
unreasonable because: (1) it is longer than necessary to promote deterrence; (2) he
has effectively eliminated his primary impetus for reentry, and (3) his prior
sentences were “effectively illegal.” In light of the totality of the circumstances
and the 18 U.S.C. § 3553(a) sentencing factors, the sentence is substantively
reasonable. See United States v. Higuera-Llamos, 574 F.3d 1206, 1211-12 (9th
Cir. 2009) (substantively reasonable sentence where appellant’s previous 18-month
sentence for illegal reentry was insufficient deterrence as “he committed the same
crime only a month after his previous release and subsequent deportation.”).
AFFIRMED.
2 11-50280