United States v. Jose Franceschy-Robles ( 2010 )

FILED
NOT FOR PUBLICATION JUL 22 2010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. 09-50342
Plaintiff - Appellee, D.C. No. 3:08-CR-01903-RTB
v.
MEMORANDUM *
JOSE LUIS FRANCESCHY-ROBLES,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted June 29, 2010 **
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
Jose Luis Franceschy-Robles 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).
Franceschy-Robles contends that the district court procedurally erred at
sentencing by failing to consider his arguments in support of a lower sentence.
The record reflects that the district court adequately considered Franceschy-
Robles’ arguments and did not procedurally err. See United States v. Carty, 520
F.3d 984, 991-93 (9th Cir. 2008) (en banc).
Franceschy-Robles also contends that the within-Guidelines sentence is
substantively unreasonable in light of the nature of the offense and because the
Guidelines range is based on a 16-level enhancement that did not account for the
nature of Franceschy-Robles’ conduct in the underlying convictions. In light of the
totality of the circumstances, the sentence at the bottom of the Guidelines range is
substantively reasonable. See id. at 993.
Finally, Franceschy-Robles contends that the district court exhibited judicial
bias against him, in violation of his due process rights, when it compared his prior
conviction for attempted murder with a state case over which the district judge had
previously presided. This contention lacks merit because Franceschy-Robles “has
not demonstrated that his right to an impartial tribunal was violated by the court’s
remarks at sentencing.” See Lang v. Callahan, 788 F.2d 1416, 1418-19 (9th Cir.
1986).
AFFIRMED.
2 09-50342