United States v. Alberto Gutierrez

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 21, 2019
• Docket: 18-50215
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 21 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 18-50215 18-50290 Plaintiff-Appellee, D.C. Nos. 2:18-cr-00176-PA-1 v. 2:11-cr-00992-PA-1

ALBERTO ESPINOZA GUTIERREZ, AKA Alberto Espinoza, AKA Alberto MEMORANDUM* Gutierrez, AKA Francisco Mangas, AKA Alberto Ramirez,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Submitted October 15, 2019**

Before: FARRIS, LEAVY, and RAWLINSON, Circuit Judges.

In these consolidated appeals, Alberto Espinoza Gutierrez appeals the 46-

month sentence imposed following his guilty-plea conviction for being an illegal

alien found in the United States following deportation, in violation of 8 U.S.C.

* 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). § 1326, and the 18-month consecutive sentence imposed upon revocation of

supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Espinoza Gutierrez contends that the government implicitly breached the

parties’ plea agreement by making allegedly disparaging comments in its

sentencing memorandum regarding the seriousness of Espinoza Gutierrez’s

criminal history. Because Espinoza did not raise this argument in the district court,

we review for plain error. See United States v. Gonzalez-Aguilar, 718 F.3d 1185,

1187 (9th Cir. 2013). The record reflects that, in its sentencing memorandum and

at the sentencing hearing, the government stood by its recommendation that

Espinoza Gutierrez receive the sentence stipulated in the plea agreement. The

government’s discussion of Espinoza Gutierrez’s criminal history in the portion of

its sentencing memorandum addressing the need for a supervised release term was

not so inflammatory as to show that the government was “winking at the district

court to impliedly request a different outcome.” See United States v. Heredia, 768

F.3d 1220, 1231 (9th Cir. 2014) (internal quotation marks omitted). In any event,

Espinoza Gutierrez has not shown that any error affected his substantial rights. See

Gonzalez-Aguilar, 718 F.3d at 1187-90.

Espinoza Gutierrez next contends that the district court erred by failing to

explain its decision to reject the parties’ joint recommendation that no custodial

sentence be imposed for the supervised release violation. We review for plain

2 18-50215 & 18-50290 error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.

2010), and conclude that there is none. The record reflects that the district court

sufficiently explained that Espinoza Gutierrez’s criminal history, and his failure to

be deterred by previous sentences, justified a consecutive 18-month sentence. See

United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

AFFIRMED.

3 18-50215 & 18-50290