United States v. Cabrera-Ramirez

296 F. App'x 553

Opinion

MEMORANDUM

**

Carlos Cabrera-Ramirez (Cabrera) pled guilty to violating 8 U.S.C. § 1326. He appeals his sentence of 90 months in custody followed by three years of supervised release. We affirm his sentence.

Cabrera argues for the first time on appeal that the district judge unreasonably rejected his mitigation argument by considering ex parte information. We review for plain error, which is (1) error, (2) that is plain, and (3) that affects substantial rights.¹ In this case, we need not decide whether the judge erred, because Cabrera has failed to show that he would have received a different sentence if the judge had not considered the ex paite information.² The judge did not rely on the ex parte information when calculating the guideline range or tailoring Cabrera’s sentence based on the § 3553(a) factors. The record shows that the judge’s reasons for rejecting Cabrera’s mitigation arguments did not rely on the ex parte communication.

Cabrera also argues that the judge placed undue weight on the advisory Guideline range. The district judge expressly stated that she recognized that the Guideline range was a “starting point.” After correctly calculating the Guideline range, the judge carefully considered the § 3553(a) factors and gave reasons for rejecting each of Cabrera’s mitigation arguments. For Cabrera’s within-Guideline sentence, this explanation was sufficient.³

The condition that requires Cabrera to report to a probation officer “within 72 hours of release from any custody or any reentry to the United States during the period of Court-ordered supervision” does not violate the Fifth Amendment.⁴ It is premature to decide Cabrera’s Fifth Amendment challenge to the additional condition requiring him to “answer truthfully all inquiries by the probation officer.”⁵ As we explained in United States v. Abbouchi,6 nothing prevents Cabrera from asserting his Fifth Amendment privilege should the situation arise. We therefore decline to reach the issue.

AFFIRMED.

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

1 . United States v. Olano, 507 U.S. 725, 732, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

2 . Id. at 734, 113 S.Ct. 1770.

3 . United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008).

4 . United States v. Rodriguez-Rodrignez, 441 F.3d 767, 771-73 (9th Cir.2006).

5 . United States v. Abbouchi, 502 F.3d 850, 859 (9th Cir.2007).

6 . Id.