United States v. Heriberto Navarrete-Jimenez

437 F. App'x 595

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 9, 2011
• Docket: 10-50471
• Status: Unpublished

Opinion

MEMORANDUM **

Heriberto Navarrete-Jimenez appeals from the 12-month sentence imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Navarrete-Jimenez first contends that the district court imposed a procedurally unreasonable sentence because it failed to consider the sentencing factors set forth in 18 U.S.C. § 3583(e) and his mitigation arguments. However, “the record makes clear that the district court considered the evidence and arguments of the defendant and based its sentence on an analysis of the advisory Guidelines range and the provisions of [18 U.S.C. § 3583(e) ].” United States v. Stoterau, 524 F.3d 988, 1000 (9th Cir.2008).

Navarrete-Jimenez next contends that his sentence is substantively unreasonable because the district court improperly focused on the timing of the violation and discounted the mitigating factors. In light of the totality of the circumstances, including the brief period of time between Navarrete-Jimenez’s release from custody and his illegal return to the United States, the sentence is not substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Navarrete-Jimenez last contends that § 3583(e)(3) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). As he concedes, this contention is foreclosed by United States v. Huerta-Pimental, 445 F.3d 1220, 1223-25 (9th Cir.2006), and United States v. Santana, 526 F.3d 1257, 1262 (9th Cir.2008).

AFFIRMED.

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