United States v. Uber Alejandres-Santa Cruz , 535 F. App'x 610 ( 2013 )

FILED
NOT FOR PUBLICATION AUG 01 2013
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. 12-30301
Plaintiff - Appellee, D.C. No. 2:08-cr-02085-WFN
v.
MEMORANDUM *
UBER ALEJANDRES-SANTA CRUZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Uber Alejandres-Santa Cruz appeals from the district court’s judgment and
challenges the 50-month term of supervised release imposed upon revocation of
supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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).
Alejandres-Santa Cruz contends that the district court procedurally erred by
failing to consider and explain why a new term of supervised release was
warranted in light of U.S.S.G. § 5D1.1(c) (2011), which directs that a district court
ordinarily should not impose a term of supervised release if the defendant is
deportable. The record reflects that the district court adequately considered section
5D1.1(c) and explained why it declined to follow it. See Kimbrough v. United
States, 552 U.S. 85, 108-10 (2007) (district court has discretion to vary from the
Guidelines on policy grounds).
Alejandres-Santa Cruz also challenges the imposition of a new term of
supervised release as substantively unreasonable. The district court did not abuse
its discretion in imposing the sentence. See Gall v. United States, 552 U.S. 38, 51
(2007). The sentence is substantively reasonable in light of the totality of the
circumstances. See id.; see also U.S.S.G. § 5D1.1(c) cmt. n.5 (a deportable alien
may be subject to term of supervised release if the district court determines that
under the facts and circumstances of the particular case an added measure of
deterrence and protection is needed).
AFFIRMED.
2 12-30301