United States v. Efrain Hernandez

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 12, 2020
• Docket: 18-50356
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 12 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50356

Plaintiff-Appellee, D.C. No. 2:17-cr-00005-SVW-21

v. MEMORANDUM* EFRAIN LEYVA HERNANDEZ, AKA Soto,

Defendant-Appellant.

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

Submitted March 3, 2020**

Before: MURGUIA, CHRISTEN, and BADE, Circuit Judges.

Efrain Leyva Hernandez appeals from the district court’s judgment and

challenges the 71-month sentence imposed following his guilty-plea conviction for

conspiracy to distribute and to possess with intent to distribute cocaine, in violation

of 21 U.S.C. §§ 841(a)(1), 841(b)(1), and 846. We have jurisdiction under 28

* 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). U.S.C. § 1291, and we affirm.

Hernandez first argues that the district court violated his due process rights

and abused its discretion by sentencing him based on inaccurate speculation that he

was a long-term participant in the conspiracy and held a position of responsibility

within the drug trafficking organization. This claim fails because the unchallenged

information in the presentence report, upon which the district court was entitled to

rely, see United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc),

and Hernandez’s admissions, supported the district court’s inferences. See United

States v. Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir. 2009) (as long as

information has “some minimal indicium of reliability,” district court does not

violate due process by considering it at sentencing (internal quotation marks

omitted)).

Hernandez next contends that the sentence is substantively unreasonable.

He argues that the district court failed to weigh the 18 U.S.C. § 3553(a) sentencing

factors appropriately, including the need to avoid unwarranted sentencing

disparities with his co-defendants. The district court did not abuse its discretion.

See Gall v. United States, 552 U.S. 38, 51 (2007). Contrary to Hernandez’s

argument, the record reflects that the court considered the section 3553(a) factors,

the mitigating circumstances, and the sentences given to some of his co-

defendants. The within-Guidelines sentence is substantively reasonable in light of

2 18-50356 the section 3553(a) factors and the totality of the circumstances. See Gall, 552

U.S. at 51; see also United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir.

2009) (“The weight to be given the various factors in a particular case is for the

discretion of the district court.”).

AFFIRMED.

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