United States v. Jesus Rodriguez-Moreno , 437 F. App'x 531 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 3 2011
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. 10-50397
Plaintiff - Appellee, D.C. No. 3:08-cr-00540-JAH
v.
MEMORANDUM *
JESUS RODRIGUEZ-MORENO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Jesus Rodriguez-Moreno appeals from the 77-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 we affirm.
*
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).
Rodriguez-Moreno contends that the district court procedurally erred by
considering his non-scoring prior arrests in formulating the sentence, and failing to
adequately address his request for a lower sentence. Though the court mentioned
Rodriguez-Moreno’s non-scoring arrests when discussing his history and
characteristics under 18 U.S.C. § 3553(a), Rodriguez-Moreno has not shown that
the information formed a basis for the sentence. See United States v. Huckins, 53
F.3d 276, 280 (9th Cir. 1995) (“When a sentencing judge considers unreliable
information in sentencing, remand is required only if the challenged information is
‘demonstrably made the basis for the sentence.’”). Moreover, the district court
considered and addressed Rodriguez-Moreno’s arguments for a lower sentence
based on his medical condition. See United States v. Carty, 520 F.3d 984, 992 (9th
Cir. 2008) (en banc).
Rodriguez-Moreno also contends that the district court erred by denying his
motion for a downward departure based on physical impairment, pursuant to
U.S.S.G § 5H1.4. When an appellant makes such a contention, we will review the
ultimate sentence for reasonableness. See United States v. Mohamed, 459 F.3d
979, 986-87 (9th Cir. 2006).
Rodriguez-Moreno contends that the sentence is substantively unreasonable
in light of his deteriorating medical condition. Under the totality of the
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circumstances and the factors set forth in 18 U.S.C. § 3553(a), the sentence at the
low end of the Guidelines range is substantively reasonable. See Gall v. United
States, 552 U.S. 38, 51 (2007).
AFFIRMED.
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