United States v. Alberto Mendoza-Ortega

FILED
NOT FOR PUBLICATION DEC 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-30364
Plaintiff - Appellee, D.C. No. 3:13-cr-05007-RBL
v.
MEMORANDUM*
ALBERTO MENDOZA-ORTEGA,
Defendant - Appellant.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted December 5, 2014**
Before: HAWKINS, McKEOWN, and FRIEDLAND, Circuit Judges.
Alberto Mendoza-Ortega appeals from the district court’s judgment and
challenges the 108-month sentence imposed following his guilty-plea conviction
for conspiracy to distribute methamphetamine and heroin, in violation of 21 U.S.C.
§§ 841(a)(1), (b)(1)(C), and 846. We have jurisdiction under 28 U.S.C. § 1291,
*
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).
and we affirm.
Mendoza-Ortega contends that the district court procedurally erred and
violated his right to due process by considering his nationality as a sentencing
factor. At sentencing, the court expressed skepticism about Mendoza-Ortega’s
claim that he was unaware of the drug quantities possessed by his cousin, stating
“the Hispanics are very close, very suspicious of outsiders.” While this comment
was inappropriate, see U.S.S.G § 5H1.10; Offutt v. United States, 348 U.S. 11, 14
(1954) (“[J]ustice must satisfy the appearance of justice.”), it was harmless. In
calculating the Guidelines range, the court did not hold Mendoza-Ortega
responsible for his cousin’s drugs. Rather, the court adopted the Guidelines range
requested by Mendoza-Ortega and then varied downward significantly. See United
States v. Ali, 620 F.3d 1062, 1074 (9th Cir. 2010) (error is harmless where there is
no evidence that the alleged error, if changed, would result in a shorter sentence).
Moreover, contrary to Mendoza-Ortega’s contention, the below-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 nature of the offense.
See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
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