United States v. Julio Garcia-Equihua

FILED
NOT FOR PUBLICATION FEB 22 2011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. 09-50453
Plaintiff - Appellee, D.C. No. 3:09-cr-01238-JM
v.
MEMORANDUM *
JULIO GARCIA-EQUIHUA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Jeffrey T. Miller, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Julio Garcia-Equihua appeals from the 72-month sentence imposed
following his guilty-plea conviction for attempted entry after deportation, in
violation of 8 U.S.C. §1326. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
*
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).
Garcia-Equihua contends that the district court procedurally erred at
sentencing by failing to adequately explain the sentence. The record reflects that
the district court did not so err. See United States v. Carty, 520 F.3d 984, 992-93
(9th Cir. 2008) (en banc).
Garcia-Equihua also contends that under Kimbrough v. United States, 552
U.S. 85 (2007), the district court erred by not explaining the reason for imposing a
16-level enhancement under U.S.S.G. § 2L1.2, which Garcia-Equihua believes is
empirically unsound. The policy behind the enhancement is sound. See United
States v. Ramirez-Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001). As there is no
separate obligation under Kimbrough for the district court to explain why it is
imposing a valid enhancement, the district court’s explanation was sufficient. See
Carty, 520 F.3d at 992 (“[T]he district court must explain [the sentence]
sufficiently to permit meaningful appellate review.”).
Finally, Garcia-Equihua contends that his sentence is substantively
unreasonable. In light of the totality of the circumstances, the sentence below the
Guidelines range is substantively reasonable. See id. at 993.
AFFIRMED.
2 09-50453