United States v. Jorge Barrios, Jr. , 712 F. App'x 713 ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50354
Plaintiff-Appellee, D.C. No. 3:16-cr-00787-LAB
v.
MEMORANDUM*
JORGE WALTER BARRIOS, Jr.,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Jorge Walter Barrios, Jr., appeals from the district court’s judgment and
challenges the 94-month custodial sentence and five-year term of supervised
release imposed following his guilty-plea conviction for importation of
methamphetamine and aiding and abetting, in violation of 21 U.S.C. §§ 952 and
*
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).
960 and 18 U.S.C. § 2. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
Barrios argues that the district court procedurally erred by choosing a
sentence based on clearly erroneous facts, and by failing to provide an adequate
explanation for imposing an above-Guidelines term of supervised release. We
review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,
1108 (9th Cir. 2010), and conclude that there is none. The record reflects that the
district court’s statements regarding Barrios’s criminal history were not “illogical,
implausible, or without support in the record.” United States v. Graf, 610 F.3d
1148, 1157 (9th Cir. 2010); see also United States v. Hilgers, 560 F.3d 944, 948
n.4 (9th Cir. 2009) (district court may treat as true any factual assertion in the
presentence report to which the defendant does not object). Further, the record
reflects that the district court adequately explained its reasons for selecting an
above-Guidelines term of supervised release. See United States v. Carty, 520 F.3d
984, 992 (9th Cir. 2008) (en banc) (adequate explanation may be inferred from the
record as a whole).
Barrios also contends that the five-year term of supervised release is
substantively unreasonable. The district court did not abuse its discretion. See
Gall v. United States, 552 U.S. 38, 51 (2007). The above-Guidelines term is
substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and
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the totality of the circumstances. See Gall, 552 U.S. at 51.
AFFIRMED.
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