United States v. Luis Arredondo-Vargas ( 2010 )

FILED
NOT FOR PUBLICATION MAR 05 2010
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. 09-50166
Plaintiff - Appellee, D.C. No. 2:08-cr-01253-SJO
v.
MEMORANDUM *
LUIS ARREDONDO-VARGAS,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted February 16, 2010 **
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Luis Arredondo-Vargas appeals from the 24-month sentence imposed
following his guilty-plea conviction for being an illegal alien found in the United
*
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).
EH/Research
States following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction
pursuant to 28 U.S.C. § 1291, and we affirm.
Arredondo-Vargas contends that the district court procedurally erred by
failing to properly calculate the Guidelines range, by failing to sufficiently explain
why the above Guidelines range sentence was necessary, and by failing to explain
the denial of a fast-track departure. He also contends that the sentence is
substantively unreasonable in light of criminal history. The record reflects that the
district court did not procedurally err in its calculation of the advisory sentencing
Guideline range or its consideration of the 18 U.S.C. § 3553(a) factors, and that the
sentence is substantively reasonable in light of the totality of the circumstances.
See United States v. Carty, 520 F.3d 984, 991-993 (9th Cir. 2008) (en banc); see
also United States v. Higuera-Llamos, 574 F.3d 1206, 1210-12 (9th Cir. 2009).
Finally, in a footnote in his opening brief, Arredondo-Vargas contends that
the district court violated Rule 32 of the Federal Rules of Criminal Procedure by
failing to resolve a factual dispute Arredondo-Vargas raised for the first time
during his sentencing colloquy. Arredondo-Vargas’s conclusory allegations
denying crucial elements of his criminal history are insufficient to cast doubt on
the uncontroverted PSR. See United States v. Kimball, 975 F.2d 563, 567 (9th Cir.
1992).
EH/Research 2 09-50166
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062
(9th Cir. 2000), we remand the case to the district court with instructions that it
delete from the judgment the incorrect reference to 8 U.S.C. § 1326(b). See United
States v. Herrera-Blanco, 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte
to delete the reference to § 1326(b)).
AFFIRMED.
EH/Research 3 09-50166