United States v. Juan Aguiera-Guzman

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 16, 2024
• Docket: 22-50248
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 16 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-50248

Plaintiff-Appellee, D.C. No. 2:22-cr-00289-SVW-1 v.

JUAN AGUIERA-GUZMAN, AKA Robert MEMORANDUM* Aguilera Guzman, AKA Roberto Aguilera Guzman, AKA Roberto Guzman, AKA Antonio Valseachi Riga,

Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Submitted January 11, 2024** Pasadena, California

Before: TALLMAN, CALLAHAN, and BENNETT, Circuit Judges.

Defendant Juan Aguiera-Guzman appeals his high-end Guidelines sentence

of forty-one months’ imprisonment for illegal reentry. He makes three arguments

* 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). and concedes that all are subject to plain error review. Thus, for each he must

establish that “there has been (1) error; (2) that was plain; (3) that affected substantial

rights; and (4) that seriously affected the fairness, integrity, or public reputation of

the judicial proceedings.” United States v. Cannel, 517 F.3d 1172, 1176 (9th Cir.

2008). Exercising our jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742,

we affirm.

1. The government recommended a sentence of twenty-seven months’

incarceration and three years of supervised release, as required by the plea

agreement. But Defendant claims that the government implicitly breached the plea

agreement by unnecessarily mentioning Defendant’s extensive criminal history and

the need for deterrence and to protect the public in its sentencing memorandum. We

reject this claim, as Defendant fails to satisfy several of the plain error factors.

First, there was no implicit breach because the government’s challenged

statements served a valid purpose other than to advocate for a harsher sentence. See

United States v. Heredia, 768 F.3d 1220, 1231 (9th Cir. 2014). The statements

explained why three years of supervised release was appropriate even though the

Sentencing Guidelines provide that supervised release is usually not appropriate

when, as here, a defendant is likely to be removed. See U.S.S.G. § 5D1.1(c).

Second, even if an implicit breach occurred, it was not plain because the

government’s general references to Defendant’s recidivism and disregard for the law

2 were relevant to imposing supervised release. Cf. Heredia, 768 F.3d at 1233–34

(acknowledging that the government can make “some factual reference” to a

defendant’s criminal history to justify supervised release so long as the reference is

not “likelier to inflame than to provide information relevant to the imposition of

supervised release”).

Finally, even if we were to conclude that a plain breach occurred, it would not

affect Defendant’s substantial rights because “to meet this standard an error must be

‘prejudicial,’ which means that there must be a reasonable probability that the error

affected the outcome.” United States v. Marcus, 560 U.S. 258, 262 (2010) (citing

United States v. Olano, 507 U.S. 725, 734–35 (1993)). The record shows that the

district court believed a high-end Guidelines sentence of forty-one months was

warranted based on Defendant’s extensive criminal history, with the court

specifically noting that he had been undeterred by prior substantial sentences. This

information was conveyed to the court—in significantly more detail—in the plea

agreement, at the change of plea hearing, in the presentence investigation report, and

in the probation office’s letter. Nothing suggests that the court would have

disregarded such information had the government not made the challenged

statements in its sentencing memorandum. See United States v. Gonzalez-Aguilar,

718 F.3d 1185, 1188–89 (9th Cir. 2013) (no impact on substantial rights when the

challenged information in the sentencing memorandum was already conveyed “in

3 far greater detail” in other documents before the district court). Thus, there is no

reasonable probability that the challenged statements affected the outcome.

2. Defendant argues that the court procedurally erred by failing to give the

government an opportunity to speak at sentencing. See Fed. R. Crim. P.

32(i)(4)(A)(iii) (“Before imposing sentence, the court must . . . provide an attorney

for the government an opportunity to speak equivalent to that of the defendant’s

attorney.”). But even if there were a plain violation of Rule 32(i)(4)(A)(iii),

Defendant cannot show the requisite prejudice, and so his challenge fails. See

Marcus, 560 U.S. at 262.

Defendant’s assertion that the government would have advocated at the

hearing for a sentence below forty-one months is speculative. Moreover, even if the

government had recommended a sentence below forty-one months at the hearing,

the record does not support that the court would have been influenced by such

recommendation. The district court had already rejected the government’s proposed

sentence of twenty-seven months’ incarceration. And, given the court’s focus on

Defendant’s extensive criminal history and the need for deterrence, and the fact that

Defendant had been undeterred by prior sentences of forty-eight, forty-two, thirty-

six, twenty-four, and sixteen months, the court would probably not have been

persuaded to give a sentence lower than forty-one months, even had the government

added to its prior recommendation at the sentencing hearing. In short, the record

4 does not show that there is a reasonable probability that the court would have

imposed a more lenient sentence had the government been given a chance to speak

at sentencing. See Gonzalez-Aguilar, 718 F.3d at 1189 (“Mere ‘possibility’ is

insufficient to establish prejudice.”).

3. Defendant argues that the court failed to sufficiently explain the reasons

for the sentence imposed, mainly because it did not address his sentencing arguments

or mitigation evidence. See 18 U.S.C. § 3553(c). We disagree. In imposing the

sentence, the court explained that it considered the § 3553(a) factors and determined

that, given Defendant’s extensive criminal history, there was a strong need for

deterrence and to protect the public. The record also shows that the court heard and

considered Defendant’s arguments and mitigation evidence but found them

insufficient to warrant a lower sentence. The court even stated that it “considered .

. . [Defendant’s] particular circumstances as articulated by [defense] Counsel.”

Because the record shows that the court had a reasoned basis for the sentence it

imposed and that it considered Defendant’s arguments and mitigation evidence, the

court’s explanation was sufficient. See United States v. Perez-Perez, 512 F.3d 514,

516–17 (9th Cir. 2008) (finding no error when the court “expressly based the within-

guidelines sentence on the defendant’s extensive criminal history and the need for

deterrence” and it was clear from the transcript that the court considered the

defendant’s arguments).

5 AFFIRMED.