United States v. Israel Nava-Arellano

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50151
Plaintiff-Appellee, D.C. No.
3:17-cr-01507-AJB-1
v.
ISRAEL NAVA-ARELLANO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Argued and Submitted January 11, 2021
Pasadena, California
Before: WATFORD, FRIEDLAND, and BENNETT, Circuit Judges.
Israel Nava-Arellano (“Nava”) appeals his 54-month sentence for illegal
entry and illegal reentry by a removed alien. See 8 U.S.C. §§ 1325, 1326. We
affirm.
Nava first contends that the district court erred in calculating Nava’s
Guidelines range by failing to acknowledge that United States Sentencing
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Guidelines (“U.S.S.G.”) § 5G1.2(c) called for his two sentences to run
concurrently. We disagree. The district court accurately calculated Nava’s
Guidelines range as 30 to 37 months, which implies his two sentences would run
concurrently. The court never suggested that the Guidelines envisioned
consecutive sentences. Nor did the district court err by imposing an above-
Guidelines sentence. The court sufficiently set forth its reasons for varying upward
from the Guidelines range and was not required to discuss U.S.S.G. § 5G1.2(c).
See United States v. Rangel, 697 F.3d 795, 801 n.3, 802-03 (9th Cir. 2012).
Next, Nava contends that the district court committed a procedural error by
failing to recognize its discretion under Kimbrough v. United States, 552 U.S. 85(2007), to impose a lesser sentence based on a policy disagreement with the
Sentencing Guidelines. Specifically, Nava faults the district court for not
addressing his policy argument that the Sentencing Guidelines for illegal reentry
unfairly “double-count” prior convictions. See U.S.S.G. § 2L1.2. But there is no
indication that the district court here misunderstood its discretion under Kimbrough
or otherwise—rather, the district court exercised its discretion to vary upward from
the Guidelines range. Cf. United States v. Henderson, 649 F.3d 955, 964 (9th Cir.
2011) (remanding for reconsideration of a Kimbrough argument where the district
court’s comments at sentencing suggested a possible failure to appreciate its
discretion). And even if the court had erred by neglecting to address Nava’s
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Kimbrough argument at sentencing, the error would be harmless. Having
sentenced Nava on prior occasions, only to have Nava reoffend, the district court
explained at length why it felt an upward variance was necessary. It is therefore
clear that, if the court had addressed Nava’s “double-counting” policy argument
for a below-Guidelines sentence, the court would have rejected it.
Nava also attacks the illegal reentry statute itself, 8 U.S.C. § 1326(b),
claiming it is unconstitutionally vague on its face. Nava raised an identical
argument in his appeal from his prior sentence, and the panel rejected the
argument. See United States v. Nava-Arellano, 795 F. App’x 500, 502 (9th Cir.
2019). That holding is law of the case, and we see no reason to depart from it here.
Lastly, Nava contends his above-Guidelines sentence was substantively
unreasonable. Again, we disagree. The district court observed that Nava is a
“serial violator of the immigration laws,” having been deported numerous times
over the past two decades. Moreover, Nava has a lengthy criminal history beyond
just immigration offenses. The 54-month sentence was not inappropriate under
these circumstances.
AFFIRMED.
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