United States v. Roberto Gomez ( 2011 )

FILED
NOT FOR PUBLICATION APR 11 2011
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. 10-50222
Plaintiff - Appellee, D.C. No. 3:09-cr-02703-JAH
v.
MEMORANDUM *
ROBERTO GOMEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
Roberto Gomez appeals from the 140-month sentence imposed following his
guilty-plea conviction for importation of methamphetamine and aiding and
abetting, in violation of 21 U.S.C. §§ 952 and 960 and 18 U.S.C. § 2. 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).
Gomez contends that the district court procedurally erred by considering and
relying upon an improper factor in fashioning his sentence; namely his failure,
upon the advice of counsel, to disclose information regarding his finances, scars,
and tattoos at the presentence interview. The district court’s comments reflected
its view that there was insufficient information to warrant a minor role reduction or
a combination of factors departure. The record reflects that the district court, after
careful consideration of the 18 U.S.C. § 3553(a) sentencing factors, provided a
well-reasoned and thorough explanation for the below-Guidelines sentence
imposed, and did not otherwise procedurally err. See Gall v. United States, 552
U.S. 38, 51-52 (2007); see also United States v. Carty, 520 F.3d 984, 991-93 (9th
Cir. 2008) (en banc).
In the alternative, Gomez contends that the district court interfered with his
Sixth Amendment right to counsel by penalizing him for following his attorney’s
advice to remain silent on these matters at the presentence interview. This
argument lacks merit as there is no indication that the court’s sentence was
designed to punish him for exercising a constitutional right. See United States v.
Curtin, 588 F.3d 993, 998 (9th Cir. 2009).
AFFIRMED.
2 10-50222