United States v. Luis Barragan-Camarena

FILED
NOT FOR PUBLICATION NOV 01 2010
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. 10-50329
Plaintiff - Appellee, D.C. No. 3:10-cr-00913-L
v.
MEMORANDUM *
LUIS MANUEL BARRAGAN-
CAMARENA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, District Judge, Presiding
Submitted October 19, 2010 **
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
Luis Manuel Barragan-Camarena appeals from his 10-month sentenced
imposed following his guilty-plea conviction for attempted entry after deportation,
*
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).
in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
Barragan-Camarena contends that the district court procedurally erred by
failing to calculate the Sentencing Guidelines range, failing adequately to explain
the sentence, incorrectly adopting certain Sentencing Guidelines departures, and
relying on erroneous factual findings. These contentions are belied by the record.
The district court did not procedurally err. Gall v. United States, 552 U.S. 38, 49-
51 (2007).
Barragan-Camarena also contends that the district court abused its discretion
when it increased his sentence based on conduct related to a dismissed charge. The
district court did not abuse its discretion when it relied on Barragan-Camarena’s
fraudulent use of an entry document to increase his sentence. See 18 U.S.C.
§ 3553(a)(1) (instructing courts to consider the nature and circumstances of the
offense and the history and characteristics of the defendant); United States v.
Barragan-Espinoza, 350 F.3d 978, 983 (9th Cir. 2003) (recognizing that United
States v. Lawton, 193 F.3d 1087 (9th Cir. 1999) has been superceded, and holding
that sentencing courts may consider aggravating conduct that is dismissed).
Finally, Barragan-Camarena contends that the ten-month sentence was
substantively unreasonable because it was higher than necessary in light of the
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circumstances, including his allegedly minimal criminal history and the need for
deterrence and protection of the public. Given the factors set forth in 18 U.S.C.
§ 3553(a) and the totality of the circumstances, the sentence is not substantively
unreasonable. See Gall, 552 U.S. at 41, 56-58.
AFFIRMED.
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