United States v. Fernando Orozco-Uranga

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2018
• Docket: 17-50357
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 15 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50357

Plaintiff-Appellee, D.C. No. 3:17-cr-01262-LAB

v. MEMORANDUM* FERNANDO OROZCO-URANGA,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted June 12, 2018**

Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.

Fernando Orozco-Uranga appeals from the district court’s judgment and

challenges the 41-month sentence imposed following his guilty-plea conviction for

attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have

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

* 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). Orozco-Uranga contends that the district court improperly double counted

when it imposed a four-level enhancement for a prior illegal reentry offense and

then used that offense to justify a lesser fast-track departure than that

recommended by the parties. The court did not abuse its discretion. See United

States v. Christensen, 732 F.3d 1094, 1100 (9th Cir. 2013). First, the four-level

enhancement reflected only one of Orozco-Uranga’s four prior immigration

offenses, while the district court denied the fast-track departure on the basis of

Orozco-Uranga’s immigration history as a whole. Second, double counting is

impermissible only “when one part of the Guidelines is applied to increase a

defendant’s punishment on account of a kind of harm that has already been fully

accounted for by application of another part of the Guidelines.” United States v.

Stoterau, 524 F.3d 988, 1001 (9th Cir. 2008) (internal quotations omitted). Here,

the district court correctly applied a four-level enhancement based on Orozco-

Uranga’s prior illegal reentry conviction, see U.S.S.G. § 2L1.2(b)(1)(A) (2016),

and then decreased Orozco-Uranga’s base offense level under U.S.S.G. § 5K3.1.

The court did not double count or otherwise err by considering Orozco-Uranga’s

prior immigration offense in granting only a one-level reduction. See United States

v. Rosales-Gonzales, 801 F.3d 1177, 1184 (9th Cir. 2015) (under 18 U.S.C.

2 17-50357 § 3553(a), district court may consider defendant’s immigration history to

determine whether to grant fast-track reduction and the proper sentence). Nor does

the record support Orozco-Uranga’s assertion that the court misapplied the

Guidelines calculation to create the sentencing range it preferred. See id. at 1181-

82.

AFFIRMED.

3 17-50357