United States v. Justo Barajona-Avila

FILED
NOT FOR PUBLICATION OCT 3 2011
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. 10-30361
Plaintiff - Appellee, D.C. No. 6:10-cr-60060-HO
v.
MEMORANDUM *
JUSTO BARAJONA-AVILA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding
Submitted September 27, 2011 **
Before: HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.
Justo Barajona-Avila appeals from the 77-month sentence imposed
following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Barajona-Avila contends that the sentence is substantively unreasonable
*
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).
because it is based on a 16-level enhancement under U.S.S.G. § 2L1.2(b) which
lacks any empirical basis, and is grossly disproportionate to sentencing
enhancements for more serious offenses. He further contends that the sentence is
substantively unreasonable in light of his individual circumstances. The sentence
at the bottom of the Guidelines range is substantively reasonable in light of the 18
U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,
particularly given Barajona-Avila’s multiple prior deportations and criminal
history. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc);
United States v. Ramirez-Garcia, 269 F.3d 945, 947 (9th Cir. 2001) (holding that
U.S.S.G. § 2L1.2(b) properly implements Congress’ intent “to enhance the
penalties for aliens with prior convictions in order to deter others[]” by increasing
the “sentencing range for aliens with prior convictions[]”).
AFFIRMED.
2 10-30361