United States v. Ricardo Cordero-Ontiveros , 406 F. App'x 245 ( 2010 )


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  •                                                                               FILED
    NOT FOR PUBLICATION                                DEC 21 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 09-50622
    Plaintiff - Appellee,              D.C. No. 3:09-cr-03510-LAB-1
    v.
    MEMORANDUM*
    RICARDO CORDERO-ONTIVEROS,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Larry A. Burns, District Judge, Presiding
    Submitted December 9, 2010**
    Pasadena, California
    Before: PREGERSON and CLIFTON, Circuit Judges, and HOLLAND, Senior
    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 this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    ***
    The Honorable H. Russel Holland, Senior United States District Judge
    for the District of Alaska, sitting by designation.
    Defendant - Appellant Ricardo Cordero-Ontiveros (“Cordero”), a citizen of
    Mexico, appeals his 24-month sentence for being a deported alien found in the
    United States under 
    8 U.S.C. § 1326
    . For the reasons outlined below, we affirm
    the district court.
    Under de novo review, United States v. Thomas, 
    355 F.3d 1191
    , 1194 (9th
    Cir. 2004), the district court did not violate Federal Rule of Criminal Procedure 32.
    The district court resolved any factual dispute about alien smuggling when it
    definitively ruled that “there is no proof of alien smuggling.” After this ruling, the
    court did not again refer to alien smuggling. The court also explicitly stated that it
    accepted “at face value” Cordero’s explanation that he crossed the border for the
    sole purpose of finding work to support his family. The court said, “I take your
    word for it that [Cordero’s] reasons are to find a job and find opportunity.”
    Cordero claims that the district court abused its discretion by basing its
    sentencing decision on unreliable allegations of alien smuggling. Because the
    district court explicitly found no evidence of alien smuggling, and therefore did not
    base its sentence on such evidence, Cordero’s claim fails. Cf. United States v.
    Hanna, 
    49 F.3d 572
    , 577 (9th Cir. 1995) (holding that the district court abuses its
    discretion if it bases its sentence on materially false or unreliable information).
    Finally, the imposition of a 24-month sentence was not unreasonable. The
    court considered the relevant sentencing factors under 
    18 U.S.C. § 3553
    (a), and
    was within its discretion to give the greatest weight to the factor of deterrence,
    especially because this was the fourth time Cordero had been convicted under 
    8 U.S.C. § 1326
    . See United States v. Gutierrez-Sanchez, 
    587 F.3d 904
    , 908 (9th
    Cir. 2009). It was logical and reasonable for the district court to use Cordero’s past
    sentences as a starting point for setting his new sentence, given that those prior
    sentences had been insufficient to deter Cordero from violating § 1326 again.
    Contrary to Cordero’s assertion, the district court did not fail to meaningfully
    consider the correct range under the U.S. Sentencing Guidelines. The court began
    the sentencing hearing with a discussion of the guideline range, repeatedly referred
    back to that range throughout the hearing when weighing the § 3553(a) factors, and
    provided detailed reasoning for varying upwards from the guidelines. Thus, the
    district court properly used the Sentencing Guidelines as “the starting point and the
    initial benchmark[,]” Gall v. United States, 
    552 U.S. 38
    , 49 (2008), and kept the
    Guidelines in mind throughout the process. United States v. Carty, 
    520 F.3d 984
    ,
    991 (9th Cir. 2008).
    AFFIRMED.
    

Document Info

Docket Number: 09-50622

Citation Numbers: 406 F. App'x 245

Judges: Pregerson, Clifton, Holland

Filed Date: 12/21/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024