United States v. Francisco Gomez-Cruz

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 7 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 19-50200
19-50201
Plaintiff-Appellee,
D.C. Nos. 3:19-cr-00741-LAB-1
v. 3:18-cr-03281-LAB-1
FRANCISCO GOMEZ-CRUZ,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted February 4, 2020**
Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.
In these consolidated appeals, Francisco Gomez-Cruz appeals the 16-month
sentence imposed following his guilty-plea conviction for attempted reentry of a
removed alien, in violation of 8 U.S.C. § 1326, and the 10-month consecutive
sentence imposed upon revocation of supervised release. We have jurisdiction
*
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).
under 28 U.S.C. § 1291, and we affirm.
Gomez-Cruz contends that the aggregate 26-month sentence is substantively
unreasonable. He argues that the district court abused its discretion by denying the
parties’ joint recommendation for a two-level fast-track departure under U.S.S.G.
§ 5K3.1, and that the circumstances did not support consecutive high-end
sentences. The district court did not abuse its discretion. See Gall v. United States,
552 U.S. 38, 51 (2007); United States v. Rosales-Gonzales, 801 F.3d 1177, 1180
(9th Cir. 2015). The 26-month sentence is substantively reasonable in light of the
applicable 18 U.S.C. § 3553(a) sentencing factors and the totality of the
circumstances, including Gomez-Cruz’s significant immigration history. See Gall,
552 U.S. at 51; see also U.S.S.G. § 7B1.3(f). Moreover, contrary to Gomez-Cruz’s
contentions, the district court considered the section 3553(a) factors and adequately
explained its reasons for the sentence, see United States v. Carty, 520 F.3d 984,
991-92 (9th Cir. 2008) (en banc), and did not rely on any clearly erroneous facts,
see United States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010) (“A finding is
clearly erroneous if it is illogical, implausible, or without support in the record.”).
AFFIRMED.
2 19-50200 & 19-50201