United States v. Miguel Navarro-Valle ( 2014 )

FILED
NOT FOR PUBLICATION NOV 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50642
Plaintiff - Appellee, D.C. No. 3:13-cr-02442-LAB
v.
MEMORANDUM*
MIGUEL NAVARRO-VALLE,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Miguel Navarro-Valle appeals from the district court’s judgment and
challenges the 12-month sentence imposed following his guilty-plea conviction for
being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.
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).
Navarro-Valle contends that the district court procedurally erred by granting
only a one-level fast-track departure under U.S.S.G. § 5K3.1, rather than the four-
level departure requested by the government. “In analyzing challenges to a court’s
upward and downward departures to a specific offense characteristic or other
adjustment under Section 5K, we do not evaluate them for procedural correctness,
but rather, as part of a sentence’s substantive reasonableness.” United States v.
Ellis, 641 F.3d 411, 421 (9th Cir. 2011). Contrary to Navarro-Valle’s contention,
his within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) sentencing factors and the totality of the circumstances, including the
need for deterrence. See Gall v. United States, 522 U.S. 38, 51 (2007).
Navarro-Valle also argues that the district court violated the separation of
powers doctrine by considering an internal Department of Justice memorandum in
evaluating the fast-track departure. Even if Navarro-Valle is correct that this claim
is reviewable, we are not persuaded. Navarro-Valle has not demonstrated that the
court’s consideration of the memorandum for “informational” purposes infringed
on any prosecutorial power. See United States v. Miller, 722 F.2d 562, 565 (9th
Cir. 1983) (“[S]eparation of powers requires that the judiciary remain independent
of executive affairs.”).
AFFIRMED.
2 13-50642