United States v. Gonzalez-Diaz

FILED
NOT FOR PUBLICATION JAN 24 2011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. 10-30002
Plaintiff - Appellee, D.C. No. 4:09-cr-00092-SEH-1
v.
MEMORANDUM *
JAVIER DOLORES GONZALEZ-DIAZ,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 10-30030
Plaintiff - Appellee, D.C. No. 4:09-cr-00077-SEH-1
v.
JAVIER DOLORES GONZALEZ-DIAZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted November 5, 2010
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: W. FLETCHER and FISHER, Circuit Judges, and JONES, District
Judge.**
Javier Dolores Gonzalez-Diaz appeals his conviction and sentence for illegal
reentry, identity theft and related offenses. We have jurisdiction under 28 U.S.C.
§ 1291 and we affirm. Because the facts are known to the parties, we repeat them
only as necessary to explain our decision.1
1. The district court properly refused to instruct the jury on official
restraint because Gonzalez-Diaz was not entering the United States from a foreign
country. See United States v. Ambriz-Ambriz, 586 F.3d 719, 724 (9th Cir. 2009)
(“Because the uncontroverted evidence was that [the defendant] never legally left
the United States [when he drove into Canada], the official restraint doctrine was
not applicable even though he was arrested at a border station.”).
2. The district court did not err by denying Gonzalez-Diaz a sentencing
adjustment for acceptance of responsibility. Gonzalez-Diaz did not demonstrate
sincere remorse for his conduct. See United States v. Daly, 974 F.2d 1215, 1218
(9th Cir. 1992) (per curiam). Furthermore, although at trial Gonzalez-Diaz raised a
**
The Honorable James P. Jones, United States District Judge for the
Western District of Virginia, sitting by designation.
1
We address Gonzalez-Diaz’s argument that the district court erroneously
denied his motion for acquittal in a concurrently filed published opinion.
2
legal defense to being found in the United States, he also contested the factual
predicates of his liability, including recanting aspects of his pretrial confession.
See U.S.S.G. § 3E1.1 cmt. n. 2 (explaining that a “a defendant may clearly
demonstrate an acceptance of responsibility for his criminal conduct even though
he exercises his constitutional right to a trial” in “rare situations,” including “where
a defendant goes to trial to assert and preserve issues that do not relate to factual
guilt” (emphasis added)).
3. The district court adequately explained its reasons for rejecting
Gonzalez-Diaz’s sentencing arguments. The court explained that Gonzalez-Diaz’s
criminal history score did not overrepresent his criminal history because his
previous drug smuggling conviction, although several years old, was serious, and
because Gonzalez-Diaz had a previous conviction for illegal reentry and four
previous deportations. The court also adequately explained its reasons for
applying a 16-level enhancement under U.S.S.G. § 2L1.2(b), stating that although
his previous drug conviction was “some time ago,” it “involved the smuggling of a
large quantity of unlawful drugs.”
The district court did not specifically address Gonzalez-Diaz’s argument that
the court should have rejected § 2L1.2(b) under Kimbrough v. United States, 552
U.S. 85, 109-10 (2007), because § 2L1.2(b) does not reflect “empirical data and
3
national experience.” Gonzalez-Diaz, however, offers no authority that a district
court is required to expressly address each argument in a defendant’s sentencing
memorandum not distinctly argued during the sentencing hearing. See United
States v. Ressam, 593 F.3d 1095, 1119 (9th Cir. 2010) (citing United States v. Goff,
501 F.3d 250, 255 (3d Cir. 2007) (“Although the District Court is not required
either to comment on every argument counsel advances or to make findings as to
each § 3553(a) factor, it nevertheless should expressly deal with arguments
emphasized by the parties . . . .”)). Furthermore, even if the district court should
have specifically addressed Gonzalez-Diaz’s Kimbrough argument at the hearing,
there was no plain error because we have repeatedly held that the sentencing
scheme under § 1326 and § 2L1.2(b) serves a rational purpose. See United States
v. Ruiz-Chairez, 493 F.3d 1089, 1091 (9th Cir. 2007); United States v.
Ramirez-Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001).
4. We also reject Gonzalez-Diaz’s argument that his sentence is
substantively unreasonable in light of the totality of the circumstances. Although
Gonzalez-Diaz’s drug trafficking conviction was 13 years old, it is a serious
smuggling offense. In addition, he has been deported four times, has a previous
§ 1326 conviction and was on supervised release when the current offenses were
committed. Gonzalez-Diaz also benefitted substantially because five of the eight
4
counts were grouped for sentencing purposes. His mid-guidelines-range sentence
thus is substantively reasonable.
AFFIRMED.
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