United States v. Javier Lara-Renteria

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 23 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 13-50419
Plaintiff - Appellee, D.C. No. 3:13-cr-01736-LAB-1
v.
MEMORANDUM*
JAVIER LARA-RENTERIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted July 11, 2014
Pasadena, California
Before: WARDLAW, CLIFTON, and BENAVIDES,** Circuit Judges.
Javier Lara-Renteria appeals the sentence imposed following his guilty plea
conviction for illegal reentry in violation of 8 U.S.C. § 1326. He contends that the
district court abused its discretion when it rejected his Rule 11(c)(1)(B) fast-track
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
plea agreement, recalculated the sentencing guidelines range, and imposed a term
of incarceration longer than was recommended by the government, but within the
recalculated guidelines range. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
The district court’s rejection of Lara-Renteria’s fast-track plea agreement
was not an abuse of discretion. United States v. Carty, 520 F.3d 984, 993 (9th Cir.
2008). Its refusal to exercise its discretion to decrease the offense level by four for
early disposition was not substantively unreasonable. See United States v. Ellis,
641 F.3d 411, 421 (9th Cir. 2011) (“In analyzing challenges to a court’s upward
and downward departures to a specific offense characteristic or other adjustment
under Section 5K, we do not evaluate them for procedural correctness, but rather,
as part of a sentence’s substantive reasonableness.”). Although the district judge
accorded substantial deference to the government’s recommendation of a four-
level reduction in offense level in exchange for his fast-track plea because
Congress had approved that departure, he rejected the government’s
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recommendation due to an individualized consideration of Lara-Renteria’s criminal
and immigration history.1
The district court disagreed with the government’s conclusion that Lara-
Renteria was an appropriate candidate for fast-track consideration given the criteria
set forth by the Department of Justice in a memorandum dated January 31, 2012 by
James M. Cole. Lara-Renteria had a recent conviction under 8 U.S.C. § 1326, for
which he had violated the terms of supervised release with the offense at issue, and
for which he had received fast-track treatment. The probation report also revealed
Lara-Renteria’s extensive criminal history, which included burglary in the second
degree, possession of and carrying a concealed firearm, grand theft, and numerous
removals, including one based on his conviction for an aggravated felony.
Recalculating the guidelines range, the district judge correctly found an offense
level of thirteen and a criminal history category of five, for a sentencing range of
thirty to thirty-seven months.
1
The sentencing transcript makes clear that the district judge did not apply a
“blanket policy” against fast-track plea agreements in this case. U.S. v. Gonzalez,
502 F. App’x 665 (9th Cir. 2012) (holding that a district court’s “blanket policy
against accepting any binding plea agreements in fast-track cases” was an abuse of
discretion).
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Turning to the factors identified in 18 U.S.C. § 3553(a), the district judge
considered Lara-Renteria’s immigration record of prior removals in aggravation,
and, in mitigation, his U.S. citizen family that resided in the United States
motivating Lara-Renteria’s repeated unlawful returns. The district judge did not
abuse his discretion in determining that a term of incarceration of thirty-six months
was “sufficient, but not greater than necessary” to accomplish the goals of
sentencing. United States v. Crowe, 563 F.3d 969, 977 n.16 (9th Cir. 2009). He
reasoned that a term of thirty-six months would most appropriately deter future
criminal conduct while protecting the public and promoting respect for the law.
Nor did the district court plainly err in finding that Lara-Renteria had
previously been warned not to return to the United States illegally. Lara-Renteria
had been convicted under 18 U.S.C. § 1326, and his term of supervised release
included a special condition prohibiting him from reentering the United States
illegally and requiring him to report to the probation officer within twenty-four
hours of any reentry. Indeed, his supervised release was subject to revocation for
violating these conditions.
AFFIRMED.
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