United States v. Herminio Garcia-Garcia

548 F. App'x 446

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 9, 2013
• Docket: 12-50352
• Status: Unpublished

Opinion

MEMORANDUM **

Herminio Garcia-Garcia appeals from the district court’s judgment and challenges the 70-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Garcia-Garcia contends that the district court abused its discretion by relying on U.S.S.G. § 2L1.2(b) in imposing sentence. He argues that section 2L1.2(b) is not supported by empirical evidence, resulted in improper double counting of his prior conviction for possession of a controlled substance, arbitrarily increased his sentence based on unrelated prior conduct, and resulted in a disproportionately long sentence. These contentions lack merit. See United States v. Salazar-Mojica, 634 F.3d 1070, 1074 (9th Cir.2011) (rejecting “broad allegation that the Sentencing Commission lacked justification to authorize increases in offense levels” under section 2L1.2); United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir.2009) (per curiam) (finding no improper double counting in using a prior conviction for a sentencing enhancement and for calculating criminal history score). The court did not procedurally err in relying on section 2L1.2(b) or otherwise abuse its discretion in imposing Garcia-Garcia’s sentence. See Gall v. United States, 552 U.S. 38, 51, 55-56, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The within-Guidelines sentence is substantively reasonable in light of the totality of the circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a). See id. at 51, 128 S.Ct. 586.

AFFIRMED.

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