United States v. Jose Padilla-Vazquez

FILED
NOT FOR PUBLICATION DEC 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50460
Plaintiff - Appellee, D.C. No. 3:12-cr-01061-LAB
v.
MEMORANDUM*
JOSE LUIS PADILLA-VAZQUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Jose Luis Padilla-Vazquez appeals from the district court’s judgment and
challenges his 48-month sentence imposed following his guilty-plea conviction for
attempted entry after deportation, in violation of 8 U.S.C. § 1326; and fraud and
misuse of an entry document, in violation of 18 U.S.C. § 1546(a). We have
*
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).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Padilla-Vazquez contends that the district court procedurally erred by
imposing a sentence based on clearly erroneous facts. Specifically, he contends
that the court’s finding that he received written warnings in Spanish notifying him
of the consequences of returning to the United States following his deportation was
without support in the record. We review for plain error, see United States v.
Waknine, 543 F.3d 546, 551 (9th Cir. 2008), and find none. The district court
reasonably concluded that Padilla-Vazquez was warned of the consequences of
coming back to the United States. See United States v. Gust, 405 F.3d 797, 799
(9th Cir. 2005) (“So long as the district court’s view of the evidence is plausible in
light of the record viewed in its entirety, it cannot be clearly erroneous[.]”)
(internal quotations omitted). Furthermore, the record reflects that the court based
the sentence on Padilla-Vazquez’s criminal history and the need to protect the
public and afford adequate deterrence. Padilla-Vazquez has not demonstrated a
reasonable likelihood that the below-Guidelines sentence would have been
different absent the alleged error. See Waknine, 543 F.3d at 553.
AFFIRMED.
2 12-50460