United States v. Efrain Alvarado-Gutierrez

632 F. App'x 383

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 26, 2016
• Docket: 15-50159
• Status: Unpublished

Opinion

MEMORANDUM **

Efrain Alvarado-Gutierrez appeals from the district court’s judgment and challenges the 12-month custodial sentence and two-year term of supervised release imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Alvarado-Gutierrez contends that the district court procedurally erred by failing ' to provide a reasoned basis for exercising its discretion under Kimbrough v. United States, 552 U.S. 85, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007), to reject U.S.S.G. § 5D1.1(c). His reliance on Kimbrough is misplaced. While section 5Dl.l(c) states that a district court should not ordinarily impose a term of supervised release if the defendant is a deportable alien, it also provides that supervised release may be appropriate in such cases if it will provide an added measure of deterrence. See U.S.S.G. § 5D1.1 cmt. n.5. The district court’s decision to impose supervised release on the basis of its finding that doing so would provide an added measure of deterrence in Alvarado-Gutierrez’s case was, therefore, consistent with the Guidelines.

Alvarado-Gutierrez also contends that the 12-month custodial sentence and two-year term of supervised release are substantively unreasonable. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The within-Guidelines custodial sentence and term of supervised release are substantively reasonable in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, including the need to afford adequate deterrence. See Gall, 552 U.S. at 51, 128 S.Ct. 586; United States v. Valdavinos-Torres, 704 F.3d 679, 692-93 (9th Cir.2012).

AFFIRMED.

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