United States v. Julio Torres-Martinez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50273
Plaintiff-Appellee, D.C. No. 3:17-cr-00883-LAB
v.
MEMORANDUM*
JULIO CESAR TORRES-MARTINEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted May 15, 2018**
Before: SILVERMAN, BEA, and WATFORD, Circuit Judges.
Julio Cesar Torres-Martinez appeals from the district court’s judgment and
challenges the 16-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 Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
For the first time on appeal, Torres-Martinez argues that the government
breached the terms of the parties’ plea agreement by failing to recommend a
sentence in the “middle-range” of the Guidelines. The government argues that
Torres-Martinez waived this claim by failing to raise it in the district court. We
decline to decide whether Torres-Martinez waived his breach claim because, even
if merely forfeited, Torres-Martinez cannot show plain error. See United States v.
Whitney, 673 F.3d 965, 970 (9th Cir. 2012). The government recommended a
sentence of ten months, which was in the “middle range” of the parties’ Guidelines
calculation, as Torres-Martinez’s sentencing memorandum implicitly
acknowledged. Moreover, even treating the ten month recommendation as a
breach, it did not affect Torres-Martinez’s substantial rights because the record
makes clear that there is no reasonable probability that the court would have
imposed a different sentence absent the breach. See United States v. Gonzalez-
Aguilar, 718 F.3d 1185, 1187 (9th Cir. 2013).
Torres-Martinez next contends that the district court procedurally erred
when it denied the parties’ joint request for a two-level departure under U.S.S.G.
§ 5K1.3, and imposed a substantively unreasonable sentence. We do not review
the procedural correctness of a district court’s departure decision; rather, we
review the substantive reasonableness of the ultimate sentence under an abuse of
discretion standard. See United States v. Rosales-Gonzales, 801 F.3d 1177, 1180
2 17-50273
(9th Cir. 2015). The court did not abuse its discretion. It properly considered
Torres-Martinez’s immigration history, including his three prior illegal reentry
offenses. See id. at 1184. The 16-month sentence is substantively reasonable in
light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the
circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFRIMED.
3 17-50273