United States v. Abraham Bueno-Mercado

FILED
NOT FOR PUBLICATION SEP 01 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10200
14-10343
Plaintiff - Appellee,
D.C. No. 4:13-cr-50085-JGZ
v. 4:13-cr-00930-JGZ
ABRAHAM BUENO-MERCADO, MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
In these consolidated appeals, Abraham Bueno-Mercado appeals the 37-
month sentence imposed following his guilty-plea conviction for reentry after
deportation, in violation of 8 U.S.C. § 1326; and the six-month consecutive
sentence imposed upon revocation of supervised release. We have jurisdiction
*
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).
under 28 U.S.C. § 1291.
In Appeal No. 14-10200, Bueno-Mercado challenges his revocation
sentence, arguing that the district court failed to consider his mitigation arguments,
failed to explain its sentence, and imposed a substantively unreasonable sentence.
The record reflects that the district court considered Bueno-Mercado’s mitigation
arguments and sufficiently explained the sentence. See United States v. Carty, 520
F.3d 984, 992 (9th Cir. 2008) (en banc). Moreover, the district court did not abuse
its discretion in imposing Bueno-Mercado’s sentence. See Gall v. United States,
552 U.S. 38, 51 (2007). The sentence is reasonable in light of the 18 U.S.C.
§ 3583(e) factors and the totality of the circumstances. See Gall, 552 U.S. at 51.
Accordingly, we affirm in Appeal No. 14-10200.
The government argues that Appeal No. 14-10343 should be dismissed
based on an appeal waiver contained in the plea agreement. We review de novo
whether to enforce an appeal waiver. See United States v. Watson, 582 F.3d 974,
981 (9th Cir. 2009). Contrary to Bueno-Mercado’s contention, the record reflects
that the district court properly advised him of the terms of the appeal waiver when
it accepted his guilty plea. See id. at 987. Moreover, his sentence is not illegal
because Almendarez-Torres v. United States, 523 U.S. 224 (1998), remains good
law. See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013) (declining to
2 14-10200 & 14-10343
revisit Almendarez-Torres). Accordingly, we dismiss Appeal No. 14-10343 in
light of the valid appeal waiver. See Watson, 582 F.3d at 988.
Appeal No. 14-10200 AFFIRMED.
Appeal No. 14-10343 DISMISSED.
3 14-10200 & 14-10343