United States v. Jose Murillo-Camacho

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2021
• Docket: 20-50262
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-50262

Plaintiff-Appellee, D.C. No. 3:20-cr-01620-DMS-1

v.

JOSE ANTONIO MURILLO-CAMACHO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding

Submitted April 20, 2021**

Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

Jose Antonio Murillo-Camacho appeals from the district court’s judgment

and challenges the 24-month sentence imposed following his guilty-plea

conviction for unlawful attempted entry by an alien, in violation of 8 U.S.C.

§ 1325(a). 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). Murillo-Camacho first contends that the district court erred by comparing

him to defendants convicted of illegal reentry under 8 U.S.C. § 1326 when

determining his sentence. However, the district court’s reference to another

defendant’s § 1326 proceeding was made in the context of a discussion regarding

the government’s decision not to charge Murillo-Camacho with illegal reentry.

Further, the district court properly considered Murillo-Camacho’s prior sentences

for immigration offenses. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B).

Murillo-Camacho next contends that the district court relied on clearly

erroneous facts by assuming that Murillo-Camacho’s prior removal order was valid

and thereby implicitly applying a 10-level enhancement to his base offense level.

He maintains that, at a minimum, remand is warranted for the district court to

clarify that it did not base the sentence on an incorrect Guidelines range. The

record makes clear, however, that the district court knew the applicable Guidelines

range. It nevertheless determined that an above-Guidelines sentence was

warranted in light of Murillo-Camacho’s immigration and criminal history, which

included prior sentences of 46 and 57 months for immigration offenses. In light of

these circumstances, and the 18 U.S.C. § 3553(a) sentencing factors, the sentence

is substantively reasonable. See United States v. Burgos-Ortega, 777 F.3d 1047,

1056-57 (9th Cir. 2015).

AFFIRMED.

2 20-50262