United States v. Jose Cervantes-Guerra ( 2011 )

FILED
NOT FOR PUBLICATION MAR 09 2011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. 09-50578
Plaintiff - Appellee, D.C. No. 3:09-cr-01388-BEN
v.
MEMORANDUM *
JOSE E. CERVANTES-GUERRA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Jose E. Cervantes-Guerra appeals from the 57-month sentence imposed
following his 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).
Cervantes-Guerra contends that the district court’s failure to depart or vary
from the Guidelines to reflect his level of culpability in his prior conviction created
an unwarranted sentencing disparity and resulted in a substantively unreasonable
sentence. The record reflects that the district court considered Cervantes-Guerra’s
individual circumstances with respect to his prior conviction and imposed a
sentence that was substantively reasonable in light of the totality of the
circumstances and the 18 U.S.C. § 3553(a) factors. See Gall v. United States, 552
U.S. 38, 51 (2007).
Cervantes-Guerra also contends that he was denied the right of allocution.
See Fed. R. Crim. P. 32(i)(4)(A)(ii). This argument lacks merit because the
sentencing court properly provided Cervantes-Guerra the opportunity to speak
earlier in the hearing. See United States v. Leasure, 122 F.3d 837, 840-41 (9th Cir.
1997) (per curiam) (no denial of right of allocution where defendant had “clear and
unrestricted opportunity” to speak during the sentencing hearing but the court
refused to provide additional opportunity after beginning to pronounce defendant’s
sentence).
AFFIRMED.
2 09-50578