United States v. Hernandez-Gonzalez

163 F. App'x 519

Opinion

MEMORANDUM

*

Benito Hernandez-Gonzalez appeals the district court’s five-year sentence following his plea of guilty to a violation of 8 U.S.C. § 1326(a),(b)(2). We have jurisdiction under 28 U.S.C. § 1251, and we affirm.

In sentencing Hernandez-Gonzalez, the district court determined that the United States Sentencing Guidelines were unconstitutional. As a result of this ruling, the district court imposed a five-year sentence without considering the sentencing factors enumerated in 18 U.S.C. § 3553(a) or providing a statement of reasons for Hernandez-Gonzalez’s particular sentence. These omissions were error. See United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 767, 160 L.Ed.2d 621 (2005).

We need not resolve whether Hernandez-Gonzalez’s Sixth Amendment challenge to the Sentencing Guidelines was sufficient to encompass these particular errors because, even under a harmless error standard of review, we are persuaded that Hernandez-Gonzalez suffered no prejudice.

Because the district court did not apply the Sentencing Guidelines when it imposed the five-year sentence, Hernandez-Gonzalez lacks standing to challenge the constitutionality of U.S.S.G. § 3El.l(b). See United States v. Zavalar-Serra, 853 F.2d 1512, 1517 (9th Cir.1988).

Hernandez-Gonzalez also challenges the district court’s failure to resolve his written objection to an alleged factual error in the pre-sentence report (PSR) regarding his use of an alias and incorrect date of birth. See Fed.R.Crim.P. 32(i)(3)(B). However, when asked whether he had any corrections to the PSR, Hernandez-Gonzalez answered “no.” Moreover, we are persuaded by the record that, even if the court erred under Rule 32(i)(3)(B), the disputed information did not affect the court’s sentence. Thus, the district court did not plainly err in failing to resolve Hernandez-Gonzalez’s Rule 32(i)(3)(B) objection.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir. R. 36-3.