United States v. Joel Mejia-soto ( 2010 )

FILED
NOT FOR PUBLICATION APR 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA No. 09-50349
Plaintiff - Appellee, D.C. No. 3:09-CR-00730-GT
v.
MEMORANDUM *
JOEL MEJIA-SOTO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding
Submitted April 6, 2010
Pasadena, California
Before: D.W. NELSON and REINHARDT, Circuit Judges, and GERTNER, **
District Judge.
Appellant Joel Mejia-Soto (“Mejia”) pled guilty to illegal reentry by a
deported alien, in violation of 8 U.S.C. § 1326. The district court sentenced Mejia
to an above-Guidelines sentence of 42 months after adopting the probation
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.
officer’s recommendation for a 2-level upward departure. Mejia appealed his
sentence, and we now affirm.
Mejia argues that the district court improperly calculated his sentence under
the Guidelines by considering factors outside the plea agreement and incorrectly
calculating the upward departure. However, Mejia forfeited this claim by failing to
object to the departure at the sentencing hearing. As such, the Court reviews his
claim under a plain error standard. United States v. Evans-Martinez, 530 F.3d
1164, 1167 n.1 (9th Cir. 2008).
Mejia asserts that the district court improperly relied on factors outside the
plea agreement in imposing the sentence, namely his criminal history in the Pre-
Sentence Report (“PSR”). Yet Mejia did not challenge the PSR, and a “district
court may rely on undisputed statements in the PSR at sentencing.” United States
v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005). He also argues that the court
incorrectly calculated his upward departure by adjusting his offense level and not
his criminal history category, which was a category VI. Yet USSG §
4A1.3(a)(4)(B) states that when applying an upward departure to a defendant with
a criminal history of VI, the district court should adjust the offense level to the
appropriate range. Here, the district court correctly increased Mejia’s offense
level from 12 to 14 after determining an upward departure was appropriate.
2
Mejia also claims that the district court did not adequately explain its
sentence. Failure to “adequately to explain the sentence selected, including any
deviation from the Guidelines range,” is procedural error. United States v. Carty,
520 F.3d 984, 995 (9th Cir. 2008). Here, the district court discussed Mejia’s
criminal history, and then read from and adopted probation’s rationale for the
departure. The district court stated that it had considered the Guidelines, the
Sentencing Commission’s policy statements, and the § 3553(a) factors. The court
also gave its own reasons for the departure - specifically, Mejia’s “continuous”
criminal history, beginning at age 14, the likelihood that he would commit future
crimes, and his gang membership. In light of its consideration of these factors, the
district court’s explanation was sufficient.
Finally, Mejia asserts that his sentence was substantively unreasonable. See
Carty, 520 F.3d at 991-93. The district court imposed a sentence of 42 months – 5
months above the high end of the Guidelines range of 30 - 37 months. The court
explained that it was departing pursuant to USSG § 4A1.3(a)(1) because Mejia’s
criminal history under-represented the likelihood that he would commit other
crimes.
The district court’s sentence is supported by Mejia’s gang membership and
extensive criminal history, including a juvenile firearm-related charge for which he
3
received a three-year sentence at a juvenile facility. Moreover, despite Mejia’s
deportation, he continued to return illegally to the country and commit further
crimes. Given these factors, as well as the short time between Mejia’s release from
custody and commission of this offense, the sentence was reasonable.
AFFIRMED.
4