United States v. Jose Ignacio Hernandez-Guzman , 708 F. App'x 907 ( 2017 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 15 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 16-10374
Plaintiff-Appellee, D.C. No. 3:15-cr-00069-RCJ-VPC-1
v. MEMORANDUM*
JOSE IGNACIO HERNANDEZ-
GUZMAN,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, Senior District Judge, Presiding
Submitted September 11, 2017**
San Francisco, California
Before: KOZINSKI and FRIEDLAND, Circuit Judges, and BENNETT,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes that this case is suitable for
decision without oral argument. Fed. R. App. P. 34(a)(2).
***
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
1. Defendant Jose Ignacio Hernandez-Guzman appeals the 20-month
sentence he received for being an alien illegally or unlawfully in the United States
in possession of a firearm, under 18 U.S.C. § 922(g)(5)(A), arguing that the district
court’s sentence was both procedurally and substantively unreasonable.
Because Hernandez-Guzman did not raise below is argument that the
sentence was procedurally unreasonable, we review for plain error. United States
v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). To establish plain
error, (1) there must be an “error or defect,” (2) the “error must be clear or obvious,
rather than subject to reasonable dispute,” (3) the “error must have affected the
appellant’s substantial rights, which in the ordinary case means he must
demonstrate that it ‘affected the outcome of the district court proceedings,’” and
(4) if the above three prongs are satisfied, this court has the discretion to remedy
the error “only if the error ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’” Puckett v. United States, 556 U.S. 129, 135
(2009) (quoting United States v. Olano, 507 U.S. 725, 734, 736 (1993)). We
review the substantive reasonableness claim for abuse of discretion. United States
v. Autery, 555 F.3d 864, 871 (9th Cir. 2009).
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Hernandez-Guzman argues that his sentence was procedurally unreasonable
because of the district court’s comments about his deportation status 1 The district
court did not commit plain error, by observing that it was unclear whether
Hernandez-Guzman would be deported. Moreover, Hernandez-Guzman has not
shown a reasonable probability that he would have received a different sentence
absent this alleged error. See United States v. Christensen, 732 F.3d 1094, 1103-
06 (9th Cir. 2013).
2. Hernandez-Guzman argues that the district court procedurally erred
by failing to address the mitigating evidence of his “traumatic and violent past.”
We review for plain error, see Valencia-Barragan, 608 F.3d at 1108, and conclude
that there is none. The district court listened to Hernandez-Guzman’s arguments,
stated that it had reviewed the criteria set forth forth in 18 U.S.C. § 3553(a), and
stated its reasons for varying minimally upward from the Guidelines range. ts
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The court grants Hernandez-Guzman’s motion for judicial notice of
transcripts from criminal sentencing hearings involving undocumented immigrants
in which the district court has commented on executive deportation policies. Dkt.
#5-1, Mot. For Judicial Notice. On appeal, this court may take judicial notice of
documents “not subject to reasonable dispute.” Trigueros v. Adams, 658 F.3d 983,
987 (9th Cir. 2011) (quoting FED. R. EVID. 201(b)). Although some of the district
court's comments are deeply troubling, comments in other cases cannot alone
support a claim of procedural error in Hernandez-Guzman's sentencing.
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failure to do more does not constitute plain error. See United States v. Carty, 520
F.3d 984, 992-93 (9th Cir. 2008) (en banc).
3. Hernandez-Guzman argues that the district court procedurally erred
by relying on clearly erroneous factual findings, including a finding that
Hernandez-Guzman was “willing” to shoot other people. The district court’s
finding was based on an alleged gesture Hernandez-Guzman made toward his
waist when questioned by police about whether he was carrying a weapon. We
conclude that the district court did not plainly err. Although the gesture was
susceptible to competing interpretations, the district court's assessment of its
meaning is not “illogical, implausible, or without support in the record.” See
United States v. Fitch, 659 F.3d 788, 797 (9th Cir. 2011) (quoting United States v.
Spangle, 626 F.3d 488, 497 (9th Cir. 2010)).
4. Hernandez-Guzman contends that the district court procedurally erred
when it imposed his term of supervised release. Hernandez-Guzman argues that,
because the Guidelines state that the sentencing court “ordinarily should not
impose a term of supervised release,” U.S.S.G. § 5D1.1(c), the district court erred
in failing to explain its deviation from the Guidelines recommendation. We
conclude that the district court did not plainly err. Contrary to
Hernandez-Guzman’s contention, the record reflects that the district court properly
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based the term of supervised release on its concerns about the danger
Hernandez-Guzman posed to the community. See 18 U.S.C. § 3583(c).
5. Finally, Hernandez-Guzman argues that his sentence is unreasonable.
A sentencing judge is in a superior position to make factual determinations and
evaluate their import under § 3553(a), United States v. Overton, 573 F.3d 679, 700
(9th Cir. 2009), and only a procedurally erroneous or substantively unreasonable
sentence will be set aside. See Carty, 520 F.3d at 993. Here, the district court
adequately considered the sentencing factors in § 3553(a) and explained its reasons
for its sentence. The sentence is substantively reasonable in light of the § 3553(a)
factors and the totality of the circumstances.
AFFIRMED.
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