United States v. Cesar Varela-Cruz

568 F. App'x 506

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 11, 2014
• Docket: 13-50177
• Status: Unpublished

Opinion

MEMORANDUM **

Cesar Varela-Cruz appeals from the district court’s judgment and challenges the 77-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United States after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm, but remand to correct the judgment.

Varela-Cruz contends that his sentence is substantively unreasonable because (i) the district court gave too much weight to his offense conduct and criminal history, to the exclusion of his mitigating factors and remaining 18 U.S.C. § 3553(a) sentencing factors and (ii) it creates an unwarranted sentencing disparity between his sentence and the sentences imposed on defendants with similar criminal histories prosecuted under the fast-track program. The district court did not abuse its discretion in imposing Varela-Cruz’s sentence. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The disparity between Varela-Cruz’s sentence and the sentences imposed under the fast-track program is not unwarranted and, therefore, does not violate 18 U.S.C. § 3553(a)(6). See United States v. Marcial-Santiago, 447 F.3d 715, 718-19 (9th Cir.2006). Moreover, the sentence at the low end of the Guidelines range is substantively reasonable in light of the section 3553(a) sentencing factors and the totality of the circumstances, including VarelaCruz’s extensive criminal and immigration history. See Gall, 552 U.S. at 51, 128 S.Ct. 586; United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir.2009) (the weight to be given to the various factors in a particular case is left to the discretion of the district court).

Varela-Cruz next contends that the case should be remanded to conform the written judgment to the oral pronouncement of supervised release condition number 10. The government agrees that there is a clerical mistake in the judgment. Because the oral pronouncement of the sentence controls when there is a conflict between the oral pronouncement and the written judgment, we remand for the district court to conform the judgment with the oral pronouncement of that condition. See United States v. Allen, 157 F.3d 661, 668 (9th Cir.1998).

AFFIRMED; REMANDED to correct the judgment.

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