United States v. Jorge Torres-Gonzalez

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 18, 2019
• Docket: 18-50269
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUL 18 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50269

Plaintiff-Appellee, D.C. No. 3:17-cr-04136-LAB-1

v.

JORGE TORRES-GONZALEZ, MEMORANDUM*

Defendant-Appellant.

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

Submitted July 15, 2019**

Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.

Jorge Torres-Gonzalez appeals from the district court’s judgment and

challenges the 68-month sentence imposed following his jury-trial conviction for

being a removed 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.

* 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). Torres-Gonzalez first contends that the district court’s pre-trial ruling that it

would deny a fast-track departure under U.S.S.G. § 5K3.1 violated his

constitutional rights and unfairly compelled him to go to trial. However, the

district court has discretion to grant or deny a fast-track departure, and the record

refutes Torres-Gonzalez’s suggestion that the district court’s reason for denying

the reduction was improper. See United States v. Rosales-Gonzales, 801 F.3d

1177, 1184 (9th Cir. 2015) (district court may exercise its discretion to deny a fast-

track reduction based on the defendant’s criminal and immigration history).

Moreover, because Torres-Gonzalez ultimately elected to go to trial, the district

court properly concluded that he was ineligible for the departure. See United

States v. Heredia, 768 F.3d 1220, 1237 (9th Cir. 2014) (fast-track departures are

available to defendants “who quickly plead guilty”).

Torres-Gonzalez also contends that the district court misapplied U.S.S.G.

§ 3E1.1 and violated his constitutional rights by denying an acceptance of

responsibility adjustment after indicating pre-trial that he would receive the

adjustment. However, the court’s statement that Torres-Gonzalez would receive

the adjustment was made before he elected to withdraw his guilty plea and go to

trial. Contrary to Torres-Gonzalez’s argument, the record reflects that the court

thereafter denied the adjustment, not on the basis that Torres-Gonzalez went to

trial, but rather because he contested his factual guilt at trial and did not show

2 18-50269 contrition at sentencing. The court’s finding that these actions reflected that

Torres-Gonzalez did not accept responsibility for his offense was not clearly

erroneous. See U.S.S.G. § 3E1.1 cmt. n.2; United States v. Rodriguez, 851 F.3d

931, 949 (9th Cir. 2017) (acceptance adjustment “is not intended to apply to a

defendant … who puts the government to its burden of proof at trial by denying the

essential factual elements of guilt” (internal quotation marks omitted)).

Lastly, Torres-Gonzalez 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 68-month sentence is substantively reasonable

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

circumstances, including Torres-Gonzalez’s criminal and immigration history. See

Gall, 552 U.S. at 51.

AFFIRMED.

3 18-50269