United States v. Arcenio Castaneda ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50185
Plaintiff-Appellee, D.C. No.
2:10-cr-00887-MWF-1
v.
ARCENIO CASTANEDA, AKA Arcenio MEMORANDUM*
Santiago Castaneda,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-50188
Plaintiff-Appellee, D.C. No.
2:16-cr-00758-MWF-1
v.
ARCENIO CASTANEDA, AKA Chago,
AKA Arsenio Chago, AKA Lonely, AKA
Arcenio Santiago Castaneda,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted December 5, 2018**
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Pasadena, California
Before: RAWLINSON and BEA, Circuit Judges, and RICE,*** Chief District
Judge.
In these consolidated criminal appeals, Arcenio Castaneda challenges the
sentences imposed by the district court following his guilty plea to violating 8
U.S.C. § 1326 (“Section 1326 Violation”) and to violating the terms of his
supervised release (“Supervised Release Violation”). Castaneda argues that his
sentences should be vacated because the district court committed significant
procedural errors.
It is well-established that unpreserved procedural error claims are reviewed
only for plain error. Puckett v. United States, 556 U.S. 129, 135 (2009); United
States v. Sandoval-Orellana, 714 F.3d 1174, 1180 (9th Cir. 2013). It is undisputed
that Castaneda failed to object to any of the procedural errors he now raises on
appeal. Accordingly, under plain error review, Castaneda bears the burden of
establishing a “clear or obvious” error that “affected [his] substantial rights.”
Puckett, 556 U.S. at 135. Because Castaneda fails to meet this burden, we affirm
his sentences.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Thomas O. Rice, Chief United States District Judge
for the Eastern District of Washington, sitting by designation.
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I. Sentencing for Supervised Release Violation
Castaneda argues that the district court erred procedurally (1) by failing to
separately calculate the applicable Guideline range for the Supervised Release
Violation and (2) by failing to address the applicable sentencing factors under §§
3553 and 3583 before imposing a sentence for the Supervised Release Violation.
We reject both arguments.
The district court did not plainly err by failing to memorialize the applicable
Guideline range. Prior to sentencing, the United States Probation Office (“USPO”)
twice advised the district court that Castaneda’s June 2015 arrest comprised a
Grade A violation with a Guideline range of 30 to 37 months, limited by statute to
24 months. There was never any dispute as to whether the Guideline range or the
statutory maximum was correct. Without repeating the undisputed Guideline
range, the district court sentenced Castaneda to the below-Guideline, statutory
maximum 24-month sentence, concurrent with the Section 1326 Violation.1 In
these circumstances, an adequate explanation may be inferred from the record as a
whole—the district court simply decided to apply the Guideline, specifically the
1
Significantly, the Guidelines provide that the revocation sentence is to be
served consecutively to any sentence of imprisonment the defendant is serving.
See U.S.S.G. § 7B1.3(f). Here, however, the district court imposed concurrent
sentences, per the Government’s recommendation, eliminating the possibility of
harmful error to the Defendant.
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statutory maximum term, to Castaneda’s case. See United States v. Carty, 520
F.3d 984, 992 (9th Cir. 2008).
Nor did the district court plainly err by imposing the 24-month sentence for
the Supervised Release Violation without discussing the applicable §§ 3553 and
3583 factors for that offense. The district court sentenced Castaneda for the
Supervised Release Violation only moments after sentencing him for the Section
1326 Violation. Addressing the Section 1326 Violation, the district court
confirmed that it had considered the § 3553(a) factors, including the applicable
Guideline range, and specifically discussed Castaneda’s gang membership,
recidivism, and danger to the community. Though the district court did not
expressly articulate how the § 3553(a) factors influenced its decision to impose the
statutory maximum 24-month sentence for the Supervised Release Violation, the
sufficiency of the district court’s explanation should be viewed in context of the
record as a whole. The district court’s prior discussion of relevant sentencing
factors is equally applicable to the Supervised Release Violation.
II. Imposition of Gang-Related Conditions of Supervised Release
Next, Castaneda argues that the district court erred “by prohibiting [him]
from future gang-related contacts, without making any particularized factual
findings that [he] was even a gang member, much less one linked to the particular
gang (Florencia 13) to which the conditions apply.”
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A district court “need not state at sentencing the reasons for imposing each
condition of supervised release, if it is apparent from the record.” United States v.
Blinkinsop, 606 F.3d 1110, 1119 (9th Cir. 2010) (emphasis in original). Here, the
record establishes that the district court was knowledgeable of Castaneda’s gang
ties and relied on that knowledge at sentencing. As Castaneda concedes, the
Presentence Report informed the district court that “Castaneda was identified as a
member of the Holmes Street clique of the Florencia street gang,” and the USPO
notified the district court of Castaneda’s “ties to a street gang” in its first Violation
Report and the March 8, 2017, recommendation letter. Based on this record, the
district court did not plainly err by imposing the gang-related conditions of
supervised release.
III. Double-Counting
Finally, Castaneda argues that the district court committed plain error by
impermissibly using a prior controlled substance offense to both enhance his
advisory Guidelines range by 16 levels and increase his criminal history score by
three points. Castaneda concedes, however, that “this Court has long held that a
district court does not impermissibly double count” by using a prior offense to both
enhance a defendant’s base offense level and calculate his criminal history score.
See United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009).
5 17-50185
Given this Circuit’s precedent and Castaneda’s concession, Castaneda’s double-
counting claim fails to satisfy plain error review.
AFFIRMED.
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