United States v. Antonio Barrera-Ramirez

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 21, 2018
• Docket: 17-50232
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 21 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50232

Plaintiff-Appellee, D.C. No. 3:17-cr-00471-BEN

v. MEMORANDUM* ANTONIO BARRERA-RAMIREZ,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

Antonio Barrera-Ramirez appeals from the district court’s judgment and

challenges the 30-month sentence imposed following his guilty-plea conviction for

being a removed alien found in the United States, 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 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). Barrera-Ramirez contends that the district court procedurally erred by failing

to calculate the Guidelines range at the outset of the sentencing hearing. Contrary

to Barrera-Ramirez’s contention, we review this claim for plain error. See United

States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The district

court did not plainly err because the record reflects that the court was aware of the

applicable Guidelines range, which it correctly calculated at the end of the

sentencing hearing. Barrera-Ramirez has not shown a reasonable probability that

he would have received a different sentence if the court had calculated the

Guidelines range earlier in the hearing. See United States v. Dallman, 533 F.3d

755, 762 (9th Cir. 2008). Barrera-Ramirez’s contentions that the court did not use

the Guidelines range as a benchmark, and that it manipulated the Guidelines

calculation to produce the sentencing range it preferred, are also without merit.

See United States v. Rosales-Gonzales, 801 F.3d 1177, 1181 (9th Cir. 2015)

(district court’s decision to deny the parties’ request for a fast-track departure did

not constitute manipulation of the Guidelines calculation).

Barrera-Ramirez further contends that the district court erred by relying on

erroneous facts at sentencing. The court did not plainly err. See Valencia-

Barragan, 608 F.3d at 1108. Any misapprehension the court had about the extent

of the fast-track departure granted in Barrera-Ramirez’s 2011 case, or the

2 17-50232 Guidelines range calculated in that case,1 did not affect the court’s sentencing

decision. See Dallman, 533 F.3d at 762. The court based its sentence on Barrera-

Ramirez’s criminal and immigration history, including the 21-month sentence

Barrera-Ramirez received in the 2011 case, and the need to deter. Because the

district court did not depart from the Guidelines range in this case, Barrera-

Ramirez’s argument that the court’s reliance on erroneous facts concerning his

2011 sentencing violated Federal Rule of Criminal Procedure 32(h) also fails. See

Fed. R. Crim. P. 32(h).

Lastly, Barrera-Ramirez contends that the district court abused its discretion

by denying a fast-track departure. Contrary to Barrera-Ramirez’s argument, the

record reflects that the district court properly based its decision on the

individualized facts of his case, including his criminal and immigration history.

See Rosales-Gonzales, 801 F.3d at 1183-84. The district court did not abuse its

discretion in denying a fast-track departure and imposing a 30-month sentence.

See id. at 1184-85.

AFFIRMED.

1 The government’s request that we take judicial notice of the sentencing transcript from Barrera-Ramirez’s prior case is granted.

3 17-50232