United States v. Nicolas Munoz-Candelario , 616 F. App'x 356 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
OCT 05 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-10616
Plaintiff - Appellee, D.C. No. 4:13-cr-01116-RCC-
CRP-1
v.
NICOLAS MUNOZ-CANDELARIO, MEMORANDUM*
AKA Nicolas Munoz-Feliz,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Submitted September 16, 2015**
San Francisco, California
Before: W. FLETCHER, BERZON, and BEA, Circuit Judges.
Nicolas Munoz-Candelario appeals from the 63-month sentence imposed
following his guilty-plea conviction for conspiracy to possess with intent to sell
between 50 and 100 kg of marijuana under 21 U.S.C. §§ 846, 841(a)(1),
*
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).
841(b)(1)(c), possession with intent to sell between 50 and 100 kg of marijuana
under 21 U.S.C. §§ 841(a)(1), 841(b)(1)(c), and illegal reentry under 8 U.S.C. §
1326(a), with a sentencing enhancement pursuant to 8 U.S.C. § 1326(b)(2).
1. The district court did not improperly rely on 2001 and 2004 convictions
listed in the presentence report (“PSR”) as part of Munoz-Candelario’s criminal
history. Munoz-Candelario never objected to the contents of the PSR. “[T]he
district court may rely on undisputed statements in the PSR at sentencing.” United
States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc); see also Fed. R.
Crim. P. 32(i)(3)(A) (providing that a sentencing court “may accept any undisputed
portion of the presentence report as a finding of fact”). The district court therefore
properly relied on the criminal history set out in the PSR.
2. The district court properly grouped the illegal reentry conviction
separately from the drug convictions in calculating the offense level. “The federal
sentencing guidelines require ‘that [a]ll counts involving substantially the same
harm . . . be grouped together into a single Group for purposes of calculating the
offense level pertaining to a multiple-count conviction.” United States v.
Espinoza-Baza, 647 F.3d 1182, 1193 (9th Cir. 2011) (quoting United States v.
Nanthanseng, 221 F.3d 1082, 1083 (9th Cir. 2000) (some internal quotation marks
omitted)). “For offenses in which there are no identifiable victims (e.g., drug or
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immigration offenses, where society at large is the victim), the ‘victim’ for
purposes of subsections (a) and (b) is the societal interest that is harmed. In such
cases, the counts are grouped together when the societal interests that are harmed
are closely related.” U.S.S.G. § 3D1.2 cmt. n.2.
Here, the societal interests are distinct. “The societal interest directly
threatened by violations of drug laws such as 21 U.S.C. § 841(a)(1) . . . is the
interest in ‘drug abuse prevention.’” Nanthanseng, 221 F.3d at 1084 (quoting
United States v. Barron-Rivera, 922 F.2d 549, 555 (9th Cir. 1991)). By contrast,
we have referred to the “strong societal interest in controlling immigration and in
effectively policing our borders” advanced by 8 U.S.C. § 1326. United States v.
Cupa-Guillen, 34 F.3d 860, 863 (9th Cir. 1994). Because the interests harmed by
the drug and immigration offenses here involved are distinct, the district court
properly grouped Munoz-Candelario’s drug convictions separately from his illegal
reentry conviction.
3. We decline to remand for resentencing in light of a change to the
Sentencing Guidelines. See U.S.S.G., Supp. To Appendix C, Amendment 782
(November 1, 2014).1 Remand is inappropriate because, among other reasons, the
1
This change applies retroactively. See U.S.S.G., Supp. To Appendix C,
Amendment 788 (November 1, 2014).
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amendment to the Guidelines affects only Munoz-Candelario’s marijuana
convictions; the higher offense level for his reentry conviction, which determines
his total offense level, U.S.S.G. § 3D1.4, remained unchanged. Because the
sentencing range for Munoz-Candelario would be the same regardless whether the
sentencing court applied the amended guideline, “he is ineligible for relief under §
3582(c)(2).” United States v. Waters, 648 F.3d 1114, 1117 (9th Cir. 2011).
4. The district court’s sentencing decision was not “procedurally
inadequate.” A district court is not required explicitly to address every argument
for mitigation raised by a defendant. See United States v. Amezcua-Vasquez, 567
F.3d 1050, 1054 (9th Cir. 2009). The record indicates that the district court in this
case listened to and considered Munoz-Candelario’s arguments for mitigation, as
well as the factors enumerated in 18 U.S.C. § 3553(a). No more was required. See
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010).
5. Finally, Munoz-Candelario contends that his below-Guidelines sentence
was substantively unreasonable. In departing downward from the Guidelines
range, the district court took into account both Munoz-Candelario’s significant
criminal history and the considerable amount of time that had elapsed since his last
conviction. In light of the “totality of the circumstances,” the court’s decision to
impose a sentence seven months lower than the bottom of the Guidelines range
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was not substantively unreasonable. United States v. Carty, 520 F.3d 984, 993 (9th
Cir. 2008) (en banc).
AFFIRMED.
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