United States v. Apolinar Gutierrez-Hernandez

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 19 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 18-50108 18-50109 Plaintiff-Appellee, D.C. Nos. 3:15-cr-00128-LAB v. 3:13-cr-02582-LAB

APOLINAR GUTIERREZ-HERNANDEZ, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, Chief Judge, Presiding

Submitted March 12, 2019**

Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.

In these consolidated appeals, Apolinar Gutierrez-Hernandez appeals from

the district court’s judgment and challenges the consecutive 18-month and 11-

month sentences imposed upon revocation of supervised release. 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). Gutierrez-Hernandez contends that the district court procedurally erred by

sentencing him based on the need to punish and to promote respect for the law,

prohibited considerations in a revocation proceeding. See 18 U.S.C. § 3583(e);

United States v. Miqbel, 444 F.3d 1173, 1181-82 (9th Cir. 2006). Reviewing de

novo, see United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009), we

conclude that the district court did not err. The record demonstrates that the

district court did not impose sentence solely or primarily based on improper

factors. See United States v. Simtob, 485 F.3d 1058, 1063 (9th Cir. 2007).

Gutierrez-Hernandez also contends that the aggregate 29-month sentence is

substantively unreasonable because it is greater than necessary to sanction his

breach of trust. The district court did not abuse its discretion. See Gall v. United

States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable in light of

the 18 U.S.C. § 3583(e) factors and the totality of the circumstances, including

Gutierrez-Hernandez’s numerous prior reentries into the United States and the

failure of prior, shorter sentences to deter him. See Gall, 552 U.S. at 51.

AFFIRMED.

2 18-50108 & 18-50109