United States v. Carlos Kiss-Velasquez ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 07 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 10-50309
Plaintiff - Appellee, D.C. No. 2:09-cr-01111-MMM-1
v.
MEMORANDUM*
CARLOS ENRIQUE KISS-
VELASQUEZ, AKA Carlos Enrique
Guzman Velasquez, AKA Carlos Kiis,
AKA Carlos Enrique Kiis, AKA Carlos
Kiss Velasquez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted August 31, 2011**
Pasadena, California
Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Carlos Enrique Kiss-Velasquez appeals from his conviction and sentence of
being an illegal alien found in the United States subsequent to deportation, in
violation of 8 U.S.C. § 1326(a). We have jurisdiction pursuant to 18 U.S.C.
§ 3742 and 28 U.S.C. § 1291, and we affirm.
I
Kiss-Velasquez represented to the district court that he would challenge the
Government’s proof as to the voluntariness of his entry and would not present an
affirmative defense of duress. His contention that the district court erred in
granting the government’s motion in limine because his offer of proof satisfied the
requirements of a necessity defense has therefore been waived. See United States
v. Quintana-Torres, 235 F.3d 1197, 1199 (9th Cir. 2000). Furthermore, the facts
advanced by Kiss-Velasquez would not have supported a necessity defense as a
matter of law. See United States v. Perdomo-Espana, 522 F.3d 983, 987 (9th Cir.
2008).
II
The law of this Circuit does not support Kiss-Velasquez’s contention that
the admission of a warrant of deportation to substantiate his deportation in 2000
violated his rights under the Confrontation Clause. United States v. Orozco-
Acosta, 607 F.3d 1156, 1164 (9th Cir. 2010), cert. denied, 131 S. Ct. 946 (2011).
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III
Kiss-Velasquez argues that the district court erred in considering his request
for a downward departure under U.S.S.G. § 5K2.12 for imperfect duress within its
analysis of the sentence’s substantive reasonableness pursuant to 18 U.S.C.
§ 3553(a). We disagree. “In analyzing challenges to a court’s upward and
downward departures to a specific offense characteristic or other adjustment under
Section 5K, we do not evaluate them for procedural correctness, but rather, as part
of a sentence’s substantive reasonableness.” United States v. Ellis, 641 F.3d 411,
421 (9th Cir. 2011) (citing United States v. Mohamed, 459 F.3d 979, 986 (9th Cir.
2006)).
IV
Kiss-Velasquez contends that the district court erred in concluding that he
was convicted of an aggravated felony involving “sexual abuse of a minor,” and
that a deadly weapon was involved in his recent arrest. The offense of “lewd act
upon a minor,” for which Kiss-Velasquez was convicted in 1987, constitutes an
“aggravated felony” involving “sexual abuse of a minor” under California law as
interpreted by this court. United States v. Baron-Medina, 187 F.3d 1144, 1146-47
(9th Cir. 1999). The record reflects that the district court did not find that a deadly
weapon was involved in his arrest.
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V
Kiss-Velasquez has not established that the district court excessively relied
on his criminal history to the exclusion of mitigating factors. He conceded that his
criminal history was an aggravating factor. The record demonstrates that the
district court reduced his sentence below the Sentencing Guidelines range in light
of his argument that his criminal history would be “double-counted” under the
Guidelines.
VI
Kiss-Velasquez argues that he should have been sentenced within the range
of 37 to 46 months, pursuant to the fast-track plea agreement he accepted and later
rejected. A defendant is not entitled to be sentenced to the punishment
recommended under a plea agreement if he withdraws from the agreement and
proceeds to trial. United States v. Vasquez-Landaver, 527 F.3d 798, 805 (9th Cir.
2008). Contrary to Kiss-Velasquez’s contention, the record reflects that the district
court did not increase his sentence due to the resources expended by the court and
the government; rather, the district court merely noted that the resource burden had
not been minimal in rejecting Kiss-Velasquez’s argument that his sentence should
be reduced to correlate more closely to the rejected plea offer.
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VII
The district court did not abuse its discretion in failing to address Kiss-
Velasquez’s argument that he would have lesser access to various programs and
assignments in prison due to his immigration detainer, or that he should be credited
the 23 days he spent in immigration custody prior to prosecution in this matter.
The record as a whole indicates that the district court heard and considered his
arguments. See United States v. Amezcua-Vasquez, 567 F.3d 1050, 1054 (9th Cir.
2009) (affirming sentence despite district court’s failure to mention several of
defendant’s “weighty” arguments respecting mitigation because the record as a
whole indicated that trial court had listened to and considered defendant’s
arguments).
VIII
The district court did not err in concluding that Kiss-Velasquez was not
entitled to a downward departure due to his status as an alien subject to removal.
United States v. Martinez-Ramos, 184 F.3d 1055, 1058 (9th Cir. 1999). Kiss-
Velasquez has failed to cite any authority in support of his contention that the
district court abused its discretion in declining to credit him for time he spent in the
custody of immigration officials. Cf. United States v. Sanchez-Rodriguez, 161
F.3d 556, 562-64 (9th Cir. 1998) (en banc).
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IX
Kiss-Velasquez argues that his sentence is substantively unreasonable
because the sentencing range magnified the aggravating factors of his offense, but
failed to take mitigating factors into account. The record establishes, however, that
the district court considered the mitigating factors presented by Kiss-Velasquez
pursuant to § 3553(a). It reduced his sentence because it was persuaded that his
Guidelines range “double-counted” his criminal history. Under the totality of the
circumstances, his 63-month, below-Guidelines sentence was not substantively
unreasonable. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir. 2008) (en
banc).
AFFIRMED.
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