United States v. Jaime Herrera-Ramos

FILED
NOT FOR PUBLICATION DEC 30 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10156
Plaintiff - Appellee, D.C. No. 3:12-cr-00054-HDM
v.
MEMORANDUM*
JAIME HERRERA-RAMOS,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Jaime Herrera-Ramos appeals from the district court’s judgment and
challenges the 77-month sentence imposed following his guilty-plea conviction for
illegal reentry, 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).
Herrera-Ramos contends that the district court procedurally erred by failing
to consider that he lost the opportunity to benefit from a fast-track plea agreement.
We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,
1108 (9th Cir. 2010), and find none. The district court was aware that the
government offered a prior, more favorable plea, and the court provided defense
counsel with the opportunity to discuss the specific details of the lost fast-track
plea offer. Additionally, to the extent Herrera-Ramos contends that the district
court failed to recognize its authority to vary from the Guidelines range, the record
does not support this contention.
Herrera-Ramos also contends that the sentence is substantively unreasonable
because it is based on a 16-level enhancement under U.S.S.G. § 2L1.2(b), which
lacks any empirical basis and results in a disproportionally high sentence. The
district court did not abuse its discretion in imposing Herrera-Ramos’s sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007). The bottom-of-the-Guidelines
sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and
the totality of the circumstances, including Herrera-Ramos’s violent criminal
history and cultural assimilation. See id.; see also United States v. Ramirez-
Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001) (recognizing the 16-level
2 13-10156
enhancement reflects Congress’s intent to increase penalties for aliens with prior
convictions in order to deter others).
Finally, Herrera-Ramos’s challenge to the use of the prior conviction to
enhance his sentence is foreclosed by United States v. Beng-Salazar, 452 F.3d
1088, 1091 (9th Cir. 2006).
AFFIRMED.
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