United States v. Juan Dominguez-Mendoza

FILED
NOT FOR PUBLICATION MAR 05 2012
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, Nos. 11-10300
11-10301
Plaintiff - Appellee,
D.C. Nos. 4:10-cr-01528-DCB
v. 4:11-cr-00317-DCB
JUAN JESUS DOMINGUEZ- MEMORANDUM *
MENDOZA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Submitted February 21, 2012 **
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
In these consolidated appeals, Juan Jesus Dominguez-Mendoza appeals from
the 21-month sentence imposed following his guilty-plea conviction for re-entry
after deportation, in violation of 8 U.S.C. § 1326, and from the 12-month
*
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).
consecutive sentence imposed following the revocation of supervised release. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Dominguez-Mendoza contends that the district court procedurally erred by
failing to establish the proper Sentencing Guidelines range at the outset of the
sentencing hearing, by treating the Guidelines as mandatory, and by stating that it
needed to find exceptional or extraordinary circumstances to vary from the
Guidelines. The district court’s failure to expressly calculate the Guidelines range,
and its misconception that exceptional or extraordinary circumstances are required
to vary from the Guidelines, did not affect Dominguez-Mendoza’s substantial
rights, as the probation officer correctly calculated the Guidelines range and the
district court provided sufficient reasons for the sentence. See United States v.
Dallman, 533 F.3d 755, 761 (9th Cir. 2008). Further, the record reflects that the
district court did not treat the Guidelines as mandatory.
Dominguez-Mendoza also contends that the sentences imposed are
substantively unreasonable. The consecutive sentences at the bottom of the
respective Guidelines ranges are substantively reasonable under the totality of the
circumstances and in light of the sentencing factors set forth in 18 U.S.C.
§§ 3553(a) and 3583(e). See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2 11-10300