United States v. Omar Mora-Rivera

FILED
NOT FOR PUBLICATION JUL 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50284
Plaintiff - Appellee, D.C. No. 2:12-cr-00745-ABC-1
v.
MEMORANDUM*
OMAR MORA-RIVERA, AKA Omar
Mora, AKA Omar Jair Mora, AKA Omar
Jair Mora-Rivera, AKA Omar Mora
Rivera,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Audrey B. Collins, District Judge, Presiding
Submitted July 10, 2014**
Pasadena, California
Before: SILVERMAN, TALLMAN, and RAWLINSON, Circuit Judges.
Omar Mora-Rivera appeals from the 57-month sentence imposed following
his guilty-plea conviction for being a deported alien found unlawfully in the United
*
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).
States in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
The district court did not plainly err by including Mora-Rivera’s forgery
conviction in the calculation of his criminal history category. On this record we
conclude that Mora-Rivera’s forgery crime did not occur in the course of
attempting to avoid detection or responsibility for the illegal reentry offense.
Mora-Rivera himself stated that he obtained the forged documents “after [his]
arrival” in the United States because he “sought employment.” When stopped by
police, Mora-Rivera volunteered that he had counterfeit documents in his wallet.
These actions are not consistent with the actions of someone seeking to avoid
detection for remaining in the country illegally. There was no error, let alone
“error that is so clear-cut, so obvious, a competent district judge should be able to
avoid it without benefit of objection.” United States v. Gonzalez-Aparicio, 663
F.3d 419, 428 (9th Cir. 2011) (citing United States v. Turman, 122 F.3d 1167,
1170 (9th Cir. 1997)).
We reject Mora-Rivera’s argument that, under Kimbrough v. United States,
552 U.S. 85 (2007), United States Sentencing Guideline § 2L1.2 lacks an empirical
basis and is not entitled to the same weight as the typical Guideline. The policy
behind the enhancement is sound. See United States v. Salazar-Mojica, 634 F.3d
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1070, 1074 (9th Cir. 2011); United States v. Ramirez-Garcia, 269 F.3d 945,
947–48 (9th Cir. 2001). Thus, the district court’s reliance on § 2L1.2 was not an
abuse of discretion. United States v. Henderson, 649 F.3d 955, 964 (9th Cir. 2011)
(recognizing that “district courts are not obligated to vary from the . . . Guidelines
on policy grounds if they do not have, in fact, a policy disagreement with them.”).
Mora-Rivera also claims that § 2L1.2 impermissibly double counts his prior
arson conviction. But this argument has been squarely rejected. See United States
v. Garcia–Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per curiam)
(concluding that the district court did not err by using the defendant’s prior
conviction as a basis for the sixteen-point increase pursuant to § 2L1.2 and in
calculating the defendant’s criminal history score).
Finally, Mora-Rivera contends that his 57-month sentence is substantively
unreasonable in light of the afore-mentioned Kimbrough flaws in § 2L1.2, the
staleness of his 13-year-old arson conviction, the disparity between his sentence
and a typical fast-track sentence, and his ties to the United States. We conclude
that, in light of the totality of the circumstances and the sentencing factors set forth
in 18 U.S.C. § 3553(a), the district court did not abuse its discretion by imposing a
low-end, within-Guidelines sentence. See Gall v. United States, 552 U.S. 38, 51
(2007). The district court weighed each of the necessary § 3553(a) factors,
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discussed the fact that Mora-Rivera’s prior sentence “was not sufficient to deter
him,” and made clear that it viewed Mora-Rivera’s violation as “a serious offense
and . . . a repeat offense.” Nothing in Mora-Rivera’s argument or the record leads
us to “a definite and firm conviction that the district court committed a clear error
of judgment in the conclusion it reached upon weighing the relevant factors.”
United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055 (9th Cir. 2009).
AFFIRMED.
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