United States v. Salvador Martinez

FILED
NOT FOR PUBLICATION DEC 20 2012
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. 12-50012
Plaintiff - Appellee, D.C. No. 2:11-cr-00729-JAK-1
v.
MEMORANDUM *
SALVADOR ARELLANO MARTINEZ,
AKA Salvador Martinez Arellano,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Argued and Submitted December 4, 2012
Pasadena, California
Before: PREGERSON, NOONAN, and PAEZ, Circuit Judges.
The facts are known to the parties. We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742. We review for an abuse of discretion. See
United States v. Crowe, 563 F.3d 969, 977 (9th Cir. 2009). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The defendant argues that the district court misinterpreted the cultural
assimilation departure provision, U.S.S.G. § 2L1.2, application note 8, when it
issued a 35-month sentence to his conviction under 8 U.S.C. §§ 1326(a) and (b)(2)
for illegally reentering the United States. Defendant supposes the misinterpretation
occurred when the district court failed to distinguish ordinary from culturally
motivated economic incentives. However, the 35-month sentence is 11-months
below the undisputed guideline range of 46 to 57 months. To reach the 35-month
sentence, the district court accepted the defendant’s argument as to the
applicability of the cultural assimilation departure provision. Moreover, there is no
evidence on the record that the district court abused its discretion in failing to
distinguish ordinary from culturally motivated economic incentives.
AFFIRMED
2