United States v. Jorge Gomez-Gomez

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 23, 2021
• Docket: 20-50163
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50163

Plaintiff-Appellee, D.C. No. 3:17-cr-01287-LAB-1

v. MEMORANDUM* JORGE GOMEZ-GOMEZ,

Defendant-Appellant.

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

Submitted March 16, 2021**

Before: GRABER, R. NELSON, and HUNSAKER, Circuit Judges.

Jorge Gomez-Gomez appeals from the district court’s judgment and

challenges the 99-month sentence and one condition of supervised release imposed

upon remand following his jury-trial conviction for attempted reentry of a removed

alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.

* 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). § 1291, and we affirm.

Gomez-Gomez first contends that the district court erred procedurally by

insufficiently explaining the sentence. We review for plain error, see United States

v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude that

there is none. The district court considered and rejected Gomez-Gomez’s

arguments for a shorter sentence, including the circumstances of the ongoing

COVID-19 pandemic. And it explained in detail how Gomez-Gomez’s

immigration and criminal history justified the above-Guidelines sentence.

Gomez-Gomez also contends that the sentence is substantively

unreasonable. The district court did not abuse its discretion. See Gall v. United

States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable in light of

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

See Gall, 552 U.S. at 51.

Finally, Gomez-Gomez contends that the district court’s imposition in the

written judgment of the standard supervised release condition that Gomez-Gomez

not commit any federal, state, or local crime conflicts with its oral pronouncement

of the condition. We disagree. Read in context, the court’s oral pronouncement

was a shorthand description of the condition contained in the written judgment. To

the extent the district court’s oral pronouncement was ambiguous, the later written

judgment clarified the ambiguity. See United States v. Garcia, 37 F.3d 1359, 1368

2 20-50163 (9th Cir. 1994), abrogated on other grounds by United States v. Jackson, 167 F.3d

1280 (9th Cir. 1999).

AFFIRMED.

3 20-50163