United States v. Jorge Cordova-Villa

FILED
NOT FOR PUBLICATION SEP 13 2010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. 10-50007
Plaintiff - Appellee, D.C. No. 3:08-cr-04387-BEN-1
v.
MEMORANDUM *
JORGE CORDOVA-VILLA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted September 1, 2010 **
Pasadena, California
Before: O’SCANNLAIN, FISHER and GOULD, Circuit Judges.
Jorge Cordova-Villa appeals his sentence following a guilty plea to a single
count of attempting to enter the United States after being previously removed. See
*
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).
8 U.S.C. § 1326. As the facts are known to the parties, we repeat them here only as
necessary to explain our decision.
I
Cordova-Villa first contends that the sentence the district court imposed was
substantively and procedurally unreasonable because the district court judge
improperly considered his criminal history three times in selecting a sentence
above the Guidelines minimum. We disagree. District courts are explicitly
required to consider “the history and characteristics of the defendant” when
imposing a sentence. 18 U.S.C. § 3553(a)(1). The district court’s consideration of
Cordova-Villa’s criminal history for more than one purpose under the Guidelines
was proper. See United States v. Stoterau, 524 F.3d 988, 1001 (9th Cir. 2008).
II
A
Cordova-Villa contends that the district court erred by refusing to grant a
continuance. We disagree. At sentencing, Cordova-Villa requested a continuance
to speak to the probation office about mitigating evidence related to duress. The
district court made clear that even if Cordova-Villa did so, it would not impact his
sentence, and noted that the court had already reviewed Cordova-Villa’s
allegations of mitigating evidence in a filing under seal. Accordingly, the district
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court did not abuse its discretion by denying Cordova-Villa’s requested
continuance. See United States v. Garrett, 179 F.3d 1143, 1144–45 (9th Cir. 1999)
(en banc).
B
Cordova-Villa next argues that the district court erred by relying on his post-
arrest silence to deny his request for a reduced sentence based on mitigating
evidence of duress. We disagree. Because Cordova-Villa did not raise this
objection before the district court, we review the district court’s decision for plain
error. See United States v. Rendon-Duarte, 490 F.3d 1142, 1146 (9th Cir. 2007).
Cordova-Villa’s sentence was unaffected by any potentially improper inferences
drawn by the district court. For that reason, Cordova-Villa’s substantial rights
were not affected, nor were the fairness, integrity, or public reputation of judicial
proceedings. See United States v. Olano, 507 U.S. 725, 732 (1993).
III
Cordova-Villa’s final claim is that the district court violated the principle set
forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), by imposing a sentence that
violated the parsimony principle embedded in section 3553(a). We reject this
claim because it is directly foreclosed by our decision in United States v. Chavez,
611 F.3d 1006, 1009–10 (9th Cir. 2010) (per curiam).
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IV
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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