United States v. Juan Santillan

458 F. App'x 601

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 8, 2011
• Docket: 10-50352
• Status: Unpublished

Opinion

MEMORANDUM **

Juan Carlos Santillan appeals from the 78-month sentence imposed following his guilty-plea convictions for attempted entry after deportation, in violation of 8 U.S.C. § 1326, and making a false claim to United States citizenship, in violation of 18 U.S.C. § 911. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Santillan contends that the district court procedurally erred by failing to consider his request for a cultural assimilation departure, failing to explain its decision not to depart, and failing to appreciate its authority to depart. The record shows that the court entertained Santillan’s arguments regarding the departure, and Santil-lan has not established that his sentence would have been different absent the alleged error. See United States v. Lipman, 133 F.3d 726, 730-32 (9th Cir.1998) (cultural assimilation is a permissible basis for departure); United States v. Dallman, 533 F.3d 755, 762 (9th Cir.2008) (defendant’s burden to demonstrate reasonable probability that sentence would have been different absent procedural error); cf. U.S.S.G. § 2L1.2, cmt. n.8 (cultural assimilation may be proper basis for departure under 2010 Sentencing Guidelines where it is not likely to increase risk to public from defendant’s further crimes).

Santillan contends that his sentence was substantively unreasonable. Our review of a decision not to vary or depart considers only whether the resulting sentence was substantively reasonable. See United States v. Ellis, 641 F.3d 411, 421-22 (9th Cir.2011). The sentence in the middle of the Guidelines range was not substantively unreasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

AFFIRMED.

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