United States v. Jose Alvarado-Nolasco , 361 F. App'x 784 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 06 2010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, Nos. 08-50467 & 08-50469
Plaintiff - Appellee, D.C. Nos. 3:08-cr-00880-LAB
3:05-cr-01150-LAB
v.
JOSE REFUGIO ALVARADO- MEMORANDUM *
NOLASCO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
In these consolidated appeals, Jose Refugio Alvarado-Nolasco appeals from
the 48-month sentence imposed following his guilty-plea conviction for being a
*
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).
JC/Research
deported alien found in the United States, in violation of 8 U.S.C. § 1326(a) and
(b), and the 24-month consecutive sentence imposed following revocation of
supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
First, Alvarado-Nolasco contends the district court procedurally erred by
(1) failing to consider his mental and medical condition and the lack of medical
treatment he received in prison, and (2) imposing an above-guidelines sentence
without properly explaining and considering all of the 18 U.S.C. § 3553(a)
sentencing factors. This contention is belied by the record. See United States v.
Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
Second, Alvarado-Nolasco contends that, to the extent the district court
found that he had received adequate medical care, such finding was an abuse of
discretion and plain error. There was no error in the district court’s statement that
Alvarado-Nolasco will “get the treatment that [the Bureau of Prisons] provides,
which in [the district court’s] judgment and . . . experience has been adequate
medical treatment.” See 18 U.S.C. § 3621(b).
Third, Alvarado-Nolasco contends his sentence is substantively
unreasonable. In light of the totality of the circumstances of this case and the
§ 3553(a) sentencing factors, the sentence is substantively reasonable. See Gall v.
JC/Research 2 08-50467 & 08-50469
United States, 552 U.S. 38, 51 (2007); United States v. Higuera-Llamos, 574 F.3d
1206, 1212 (9th Cir. 2009).
Finally, Alvarado-Nolasco contends the district court denied him his right of
allocution where the district court held a single hearing to impose sentence on both
the illegal reentry offense and the supervised release violation. The record shows
that the district court afforded Alvarado-Nolasco ample chance to speak on his own
behalf, and that he did so. See United States v. Mack, 200 F.3d 653, 658 (9th Cir.
2000); see also United States v. Leasure, 122 F.3d 837, 840 (9th Cir. 1997) (this
court “has never held that a defendant has a right to unlimited allocution”).
AFFIRMED.
JC/Research 3 08-50467 & 08-50469