United States v. Jose Alvarado-Nolasco

361 F. App'x 784

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 6, 2010
• Docket: 08-50467, 08-50469
• Status: Unpublished

Opinion

MEMORANDUM **

In these consolidated appeals, Jose Refugio Alvarado-Nolasco appeals from the 48-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(a) and (b), and the 24-month consecutive sentence imposed following revocation of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

First, Alvarado-Nolaseo contends the district court procedurally erred by (1) failing to consider his mental and medical condition and the lack of medical treatment he received in prison, and (2) imposing an above-guidelines sentence without properly explaining and considering all of the 18 U.S.C. § 3553(a) sentencing factors. This contention is belied by the record. See United States v. Carty, 520 F.3d 984, 993 (9th Cir.2008) (en banc).

Second, Alvarado-Nolaseo contends that, to the extent the district court found that he had received adequate medical care, such finding was an abuse of discretion and plain error. There was no error in the district court’s statement that Alvarado-Nolaseo will “get the treatment that [the Bureau of Prisons] provides, which in [the district court’s] judgment and ... experience has been adequate medical treatment.” See 18 U.S.C. § 3621(b).

Third, Alvarado-Nolaseo contends his sentence is substantively unreasonable. In light of the totality of the circumstances of this case and the § 3553(a) sentencing factors, the sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007); United States v. Higuera-Llamos, 574 F.3d 1206, 1212 (9th Cir.2009).

Finally, Alvarado-Nolaseo contends the district court denied him his right of allocution where the district court held a single hearing to impose sentence on both the illegal reentry offense and the supervised release violation. The record shows that the district court afforded Alvarado-Nolaseo ample chance to speak on his own behalf, and that he did so. See United States v. Mack, 200 F.3d 653, 658 (9th Cir.2000); see also United States v. Leasure, 122 F.3d 837, 840 (9th Cir.1997) (this court “has never held that a defendant has a right to unlimited allocution”).

AFFIRMED.

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