United States v. Omar Serrano-Guerrero , 383 F. App'x 661 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 14 2010
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. 09-50160
Plaintiff - Appellee, D.C. No. 2:08-cr-00759-ABC
v.
MEMORANDUM *
OMAR ANGEL SERRANO-
GUERRERO, a.k.a. Omar Angel Serrano,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, Chief Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Omar Angel Serrano-Guerrero appeals from the 86-month sentence imposed
following his guilty-plea conviction for being an illegal alien found in the United
*
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).
States following deportation, in violation of 8 U.S.C. § 1326(a). We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Serrano-Guerrero contends that the district court procedurally erred at
sentencing by: 1) failing to consider all of the 18 U.S.C. § 3553 factors;
2) presuming that the Guidelines range was reasonable; and 3) failing to
adequately address his mitigating arguments. The record reflects that the district
court did not procedurally err. See United States v. Carty, 520 F.3d 984, 991-93
(9th Cir. 2008) (en banc).
Serrano-Guerrero also contends that the sentence is substantively
unreasonable in light of the district court’s failure to depart downward based on
Serrano-Guerrero’s lost opportunity to serve his federal sentence concurrent to a
state sentence. The district court did not abuse its discretion by declining to
impose a lower sentence on this basis. See id. at 993. Serrano-Guerrero also
contends, for the first time on appeal, that the sentence is substantively
unreasonable because the Guidelines range is based upon a 16-level enhancement
for a relatively stale and minor drug trafficking offense. In light of the totality of
the circumstances, the within-Guidelines sentence is substantively reasonable. See
id.; cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir. 2009).
AFFIRMED.
2 09-50160