United States v. Carcamo

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 28, 2025
• Docket: 24-2117
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 28 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 24-2117 D.C. No. Plaintiff - Appellee, 3:23-cr-00388-JSC-1 v. MEMORANDUM* MARCOS CARCAMO,

Defendant - Appellant.

Appeal from the United States District Court for the Northern District of California Jacqueline Scott Corley, District Judge, Presiding

Argued and Submitted April 10, 2025 San Francisco, California

Before: S.R. THOMAS, PAEZ, and MILLER, Circuit Judges.

Defendant-Appellant Marcos Carcamo appeals the district court’s judgment

and sentence following his plea of guilty for Possession with Intent to Distribute

Methamphetamine and Possession with Intent to Distribute Cocaine Base, in

violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). The district court imposed a

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. below-guidelines prison sentence of 48 months. Defendant argues that the district

court violated his due process rights by referencing his Honduran national origin at

his sentencing hearing. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

1. We ordinarily review de novo whether a sentence violates a

defendant’s constitutional rights. But “[w]hen a party does not lodge a specific

objection in the district court, yet asserts error on appeal, we review under [the]

plain error standard.” United States v. Santiago, 466 F.3d 801, 803 (9th Cir. 2006).

Defendant did not contemporaneously object to the offending remark during

sentencing and alleges constitutional error for the first time on appeal. Thus, plain

error applies to our review of the district court’s sentence. See id.

2. On plain error review, “[b]efore an appellate court can correct an error

not raised at trial, there must be (1) error, (2) that is plain, and (3) that affects

substantial rights. If all three conditions are met, an appellate court may then

exercise its discretion to notice a forfeited error, but only if (4) the error seriously

affects the fairness, integrity, or public reputation of judicial proceedings.”

Santiago, 466 F.3d at 803 (quoting United States v. Maciel-Vasquez, 458 F.3d 994,

996 n.3 (9th Cir. 2006)).

Under United States v. Borrero-Isaza, 887 F.2d 1349 (9th Cir. 1989), the

district court violates a defendant’s constitutional due process rights if it considers

2 24-2117 “improper, inaccurate, or mistaken information” or “make[s] unfounded

assumptions or groundless inferences in imposing [a] sentence.” Id. at 1352. The

district court may not base, even in part, a sentence on a defendant’s national

origin nor give the “appearance” of having considered national origin in the

sentence. Id. at 1355-56; see also USSG § 5H1.10 (stating that race, sex, national

origin, creed, religion, and socio-economic status are “not relevant in the

determination of a sentence”).

At sentencing, the district court implicitly referenced Defendant’s Honduran

national origin when it noted that, in fashioning a sentence, deterrence of drug

“dealers coming from Honduras and dealing fentanyl” should be considered. The

court’s indirect reference to Defendant’s national origin was improper under

Borrero-Isaza. See 887 F.2d at 1355-56. However, when read in the broader

context of the court’s colloquy with defense counsel, we find that the court’s

expression of a general concern for conditions in the area where the offenses

occurred does not rise to the level of plain error. See id. at 1353 (noting that the

court’s review “begins and ends with a review of the record”). Because Defendant

fails to satisfy this critical threshold of plain error review, we affirm the district

court’s judgment and sentence.

AFFIRMED.

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