United States v. David Andrade Perez

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 25, 2023
• Docket: 22-50044
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50044

Plaintiff-Appellee, D.C. No. 8:18-cr-00100-JVS-2

v. MEMORANDUM* DAVID NAVOR ANDRADE PEREZ, AKA David Andrade,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California James V. Selna, District Judge, Presiding

Submitted January 18, 2023**

Before: GRABER, PAEZ, and NGUYEN, Circuit Judges.

David Navor Andrade Perez appeals from the district court’s judgment and

challenges the 192-month sentence imposed following his guilty-plea conviction

for distribution of methamphetamine, in violation of 21 U.S.C § 841(a)(1) and

(b)(1)(A)(viii), and aiding and abetting, in violation of 18 U.S.C. § 2(a). We have

* 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). jurisdiction under 28 U.S.C. § 1291, and we affirm.

Andrade Perez contends that the district court erred in concluding that his

policy-based objections to the methamphetamine guideline did not support a

downward variance, and failed to explain adequately this decision under Federal

Rule of Criminal Procedure 32(i)(3)(B). As an initial matter, Andrade Perez’s

sentence was driven by the career offender guideline rather than the

methamphetamine guideline. In any event, Andrade Perez’s arguments fail. The

district court acknowledged its discretion to vary from the Guidelines but

permissibly declined to do so because it did not agree that the methamphetamine

guideline was too harsh. See United States v. Henderson, 649 F.3d 955, 964 (9th

Cir. 2011) (district court may vary from the Guidelines based on a policy

disagreement but is not obligated to do so where it does not have such a

disagreement). The district court did not violate Rule 32(i)(3)(B) because Andrade

Perez’s challenge to the methamphetamine guideline was not a factual objection to

the presentence report within the meaning of Rule 32. See United States v.

Grajeda, 581 F.3d 1186, 1188-89 (9th Cir. 2009). Finally, the district court

sufficiently explained the sentence, see United States v. Carty, 520 F.3d 984, 992

(9th Cir. 2008) (en banc), and the below-Guidelines sentence is substantively

reasonable, see Gall v. United States, 552 U.S. 38, 51 (2007).

AFFIRMED.

2 22-50044