United States v. Gregorio Garcia-Haro ( 2013 )

FILED
NOT FOR PUBLICATION JUL 31 2013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. 12-50175
Plaintiff - Appellee, D.C. No. 3:11-cr-03377-DMS
v.
MEMORANDUM *
GREGORIO GARCIA-HARO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Gregorio Garcia-Haro appeals from the district court’s judgment and
challenges the 57-month sentence imposed following his guilty-plea conviction for
attempted entry after deportation, 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).
Garcia-Haro contends that the district court procedurally erred by failing to
consider all of the 18 U.S.C. § 3553(a) sentencing factors. We review for plain
error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010), and find none. The record reflects that the district court adequately
considered all of the relevant sentencing factors.
Garcia-Haro also contends that his sentence is substantively unreasonable
because the district court gave undue weight to his criminal history and failed to
account for his cultural assimilation. We review the denial of a request for a
downward departure based on cultural assimilation only as part of our review of
the overall substantive reasonableness of the sentence. See United States v. Ellis,
641 F.3d 411, 421-22 (9th Cir. 2011). The district court did not abuse its
discretion in imposing Garcia-Haro’s sentence. See Gall v. United States, 552 U.S.
38, 51 (2007). The 57-month sentence at the bottom of the Guidelines range is
substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality
of the circumstances, including Garcia-Haro’s repeated unlawful entries, multiple
removals, and violent criminal history. See id.; see also U.S.S.G. § 2L1.2 cmt. n.8
(“[A cultural assimilation] departure should be considered only . . . [where it] is not
likely to increase the risk to the public from further crimes of the defendant.”).
AFFIRMED.
2 12-50175