United States v. Carmen Oliva ( 2012 )

FILED
NOT FOR PUBLICATION MAY 24 2012
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. 11-50310
Plaintiff - Appellee, D.C. No. 3:11-cr-00227-WQH-1
v.
MEMORANDUM *
CARMEN GUADALUPE OLIVA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted May 11, 2012 **
Pasadena, California
Before: NOONAN and FISHER, Circuit Judges, and GRITZNER, Chief District
Judge.***
Carmen Guadalupe Oliva appeals from the 48-month sentence imposed by
the district court following her guilty-plea conviction for attempted illegal reentry
*
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).
***
The Honorable James E. Gritzner, Chief United States District Judge
for the Southern District of Iowa, sitting by designation.
after deportation, in violation of 8 U.S.C. § 1326. The district court’s Sentencing
Guidelines calculation included a 16-level enhancement under U.S.S.G. §
2L1.2(b)(1)(A)(i) based upon a prior deportation subsequent to a drug trafficking
conviction for which the sentence exceeded 13 months.
Oliva challenges her sentence on procedural grounds arguing the district
court failed to sua sponte acknowledge its discretion to vary from the Guidelines
based on a policy disagreement that the enhancement lacks an empirical basis and
is not an accurate measure of the gravity of the underlying offense, and by failing
to adequately explain the reasons for its sentence. Oliva also challenges the
substantive reasonableness of the sentence.1 As the facts and procedural history
are familiar to the parties, we recite them here only to the extent necessary to
explain our disposition. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
The district court properly calculated the advisory Guidelines range,
considered the parties’ arguments and the factors under § 3553(a), and imposed a
sentence that represented a 22-month downward variance from the bottom of the
1
Oliva initially challenged her change of plea hearing on procedural grounds
but has withdrawn that challenge. Accordingly, appellant’s motion to strike filed
December 29, 2011(ECF No. 15) and appellee’s motions to include certified copy
of recording filed December 22, 2011(ECF No. 10) and December 23, 2011 (ECF
No. 12), are denied as moot.
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advisory Guidelines range. See United States v. Carty, 520 F.3d 984, 991-93 (9th
Cir. 2008) (en banc) (holding that “only a procedurally erroneous or substantively
unreasonable sentence will be set aside” and that in approaching a sentencing
proceeding the district court must first determine the properly calculated Guide-
lines range, give the parties an opportunity to present arguments regarding an
appropriate sentence, and then consider the sentencing factors set forth in §
3553(a)). Contrary to Oliva’s contentions, the district court adequately explained
the basis for the sentence imposed and did not procedurally err, plain or otherwise,
by not discussing its discretion to vary from the Guidelines based on policy
grounds under Kimbrough v. United States, 552 U.S. 85, 109 (2007). See Carty,
520 F.3d at 993 (reviewing sentencing decisions for an abuse of discretion); see
also United States v. Carper, 659 F.3d 923, 925 (9th Cir. 2011) (“The district court
here gave no indication that it disagreed with [the Guidelines enhancement].
Therefore, [the defendant] was not prejudiced by the court’s failure to consider sua
sponte whether it had discretion to make a downward variance under
Kimbrough.”).
Finally, Oliva has not demonstrated that her sentence is substantively
unreasonable. See Carty, 520 F.3d at 993. The district court considered that
Oliva’s predicate felony drug trafficking conviction that triggered the 16-level
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enhancement was not remote in time; Oliva’s extensive criminal history included
several drug-trafficking and drug-related offenses; and Oliva attempted to illegally
reenter the United States less than one year following her deportation after serving
her sentence on the predicate drug-trafficking conviction. Cf. United States v.
Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009) (“[U]nder the circum-
stances of this case, it was unreasonable to adhere to the Guidelines sentence, with
its full 16-level enhancement under § 2L1.2(b), because of the staleness of [the
defendant]’s prior conviction and his subsequent history showing no convictions
for harming others or committing other crimes listed in Section 2L1.2.”). The
district court granted a downward variance and substantiated the sentence noting
that although it was higher than Oliva’s previous sentence of 18 months for illegal
reentry, the 48-month sentence nonetheless represented a significant variance from
the Guidelines range and a lower sentence would not provide adequate deterrence
and would have a tendency to promote unwarranted sentencing disparity when
considering Oliva’s prior criminal history. Thus, Oliva’s below-Guidelines
sentence is substantively reasonable.
AFFIRMED.
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