United States v. Ismael Martinez-Hernandez ( 2011 )

FILED
NOT FOR PUBLICATION MAR 15 2011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. 09-10305
Plaintiff - Appellee, D.C. No. 4:07-cr-00663-PJH
v.
MEMORANDUM *
ISMAEL MARTINEZ-HERNANDEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted March 8, 2011 **
Before: FARRIS, LEAVY, and BYBEE, Circuit Judges.
Ismael Martinez-Hernandez 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).
Citing United States v. Sanchez-Rodriguez, 161 F.3d 556 (9th Cir. 1998) (en
banc), Martinez-Hernandez contends that the district court erred when it failed to
grant a two-level downward departure based on a pre-indictment delay. He also
contends that his low-end Guidelines sentence is substantively unreasonable. The
record reflects that the district court considered the Sanchez arguments, properly
understood the scope of its direction in imposing the sentence, and did not
otherwise procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th
Cir. 2008) (en banc).
Martinez-Hernandez also contends that his sentence is substantively
unreasonable. The record reflects that, under the totality of the circumstances, the
sentence at the bottom of the Guidelines range is substantively reasonable. See
Gall v. United States, 552 U.S. 38, 51 (2007); see also Carty, 520 F.3d at 993.
AFFIRMED.
2 09-10305