United States v. Beltran-Quinonez

253 F. App'x 670

Opinion

MEMORANDUM

**

Jose Ernesto Beltran-Quinonez appeals the 36-month sentence imposed upon him following his guilty plea to one count of conveying false information concerning the bringing of a nuclear warhead into the United States for use in Boston, Massachusetts. See 18 U.S.C. § 1038(a)(1). He contends that although the district court properly calculated his base Guideline sentence pursuant to USSG § 2A6.1 (2005), it then improperly calculated a departure therefrom,¹ and also imposed an unreasonable sentence.² We affirm.

The district court carefully considered all of the evidence and the factors which must be applied in determining an ultimately reasonable sentence³ before it decided that 36 months was the proper sentence here. We cannot say that the district court abused its discretion. See Rita v. United States, —U.S.-, 127 S.Ct. 2456, 2465, 168 L.Ed.2d 203 (2007). Even were we to decide that the district court erred in calculating a departure within the meaning of the Guideline commentary,⁴ the district court’s statements made it perfectly clear that any error was immaterial to the sentence it ultimately decided upon. ⁵

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

1 . See USSG § 2A6.1, comment. (n.3(B)).

2 . See United States v. Booker, 543 U.S. 220, 261-62, 125 S.Ct. 738, 765-66, 160 L.Ed.2d 621 (2005).

3 . See 18 U.S.C. § 3553(a).

4 . We need not decide the issue. Moreover, solely for purposes of this disposition, we assume, without deciding, that the making of that calculation is still appropriate and meaningful. But see United States v. Mohamed, 459 F.3d 979, 986-87 (9th Cir.2006).

5 . See United States v. Cantrell, 433 F.3d 1269, 1279-81 (9th Cir.2006).