United States v. Ferdik Martinez-Hernandez

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2023
• Docket: 22-10342
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 22-10342 22-10343 Plaintiff-Appellee, D.C. Nos. 2:22-cr-00767-SPL-1 v. 4:20-cr-00082-SPL-1

FERDIK ARNOLDO MARTINEZ- MEMORANDUM* HERNANDEZ, AKA Jesus Hernandez,

Defendant-Appellant.

Appeal from the United States District Court for the District of Arizona Steven P. Logan, District Judge, Presiding

Submitted December 12, 2023**

Before: WALLACE, LEE, and BUMATAY, Circuit Judges.

In these consolidated appeals, Ferdik Arnoldo Martinez-Hernandez

challenges the 46-month sentence imposed following his guilty-plea conviction for

reentry of a removed alien, in violation of 8 U.S.C. § 1326, and the 8-month

* 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). consecutive sentence imposed upon revocation of supervised release. We have

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

Martinez-Hernandez contends that the aggregate 54-month sentence is

substantively unreasonable because the district court overemphasized his criminal

history and gave insufficient weight to the mitigating factors. The district court did

not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The

sentence is substantively reasonable in light of the applicable 18 U.S.C. § 3553(a)

sentencing factors and the totality of the circumstances, including Martinez-

Hernandez’s criminal and immigration history. 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.”). Nor did the district court err by considering Martinez-

Hernandez’s recent arrest for driving under the influence, which Martinez-

Hernandez has not challenged as false or unreliable. See United States v. Borrero-

Isaza, 887 F.2d 1349, 1352 (9th Cir.1989) (sentencing court may consider “a wide,

largely unlimited variety of information”). Finally, contrary to Martinez-

Hernandez’s contention, the record reflects that the district court relied on only

proper sentencing factors in imposing the revocation sentence. See United States

v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007).

AFFIRMED.

2 22-10342 & 22-10343