United States v. Francisco Gomez-Cruz

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 7, 2020
• Docket: 19-50200
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 19-50200 19-50201 Plaintiff-Appellee, D.C. Nos. 3:19-cr-00741-LAB-1 v. 3:18-cr-03281-LAB-1

FRANCISCO GOMEZ-CRUZ, MEMORANDUM* Defendant-Appellant.

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

Submitted February 4, 2020**

Before: FERNANDEZ, SILVERMAN, and TALLMAN, Circuit Judges.

In these consolidated appeals, Francisco Gomez-Cruz appeals the 16-month

sentence imposed following his guilty-plea conviction for attempted reentry of a

removed alien, in violation of 8 U.S.C. § 1326, and the 10-month consecutive

sentence imposed upon revocation of supervised release. We have jurisdiction

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

Gomez-Cruz contends that the aggregate 26-month sentence is substantively

unreasonable. He argues that the district court abused its discretion by denying the

parties’ joint recommendation for a two-level fast-track departure under U.S.S.G.

§ 5K3.1, and that the circumstances did not support consecutive high-end

sentences. The district court did not abuse its discretion. See Gall v. United States,

552 U.S. 38, 51 (2007); United States v. Rosales-Gonzales, 801 F.3d 1177, 1180

(9th Cir. 2015). The 26-month sentence is substantively reasonable in light of the

applicable 18 U.S.C. § 3553(a) sentencing factors and the totality of the

circumstances, including Gomez-Cruz’s significant immigration history. See Gall,

552 U.S. at 51; see also U.S.S.G. § 7B1.3(f). Moreover, contrary to Gomez-Cruz’s

contentions, the district court considered the section 3553(a) factors and adequately

explained its reasons for the sentence, see United States v. Carty, 520 F.3d 984,

991-92 (9th Cir. 2008) (en banc), and did not rely on any clearly erroneous facts,

see United States v. Graf, 610 F.3d 1148, 1157 (9th Cir. 2010) (“A finding is

clearly erroneous if it is illogical, implausible, or without support in the record.”).

AFFIRMED.

2 19-50200 & 19-50201