United States v. Leonel Gomez-Yanez

538 F. App'x 792

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 19, 2013
• Docket: 13-50116
• Status: Unpublished

Opinion

MEMORANDUM **

Leonel Gomez-Yanez appeals from the district court’s judgment and challenges the 12-month sentence imposed following his guilty-plea 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.

Gomez-Yanez contends the district court procedurally erred by failing to correctly calculate the applicable Guidelines range and by not stating whether the fast-track departure recommended by the parties was included in the calculation. We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.2010), and find none. The record reflects that the court rejected the fast-track departure and properly calculated the Guidelines range without the departure. Further, any failure to reconcile the parties’ calculations of Gomez-Yanez’s criminal history score was harmless because the court used the lower score.

Gomez-Yanez also contends his sentence is substantively unreasonable because the district court improperly relied upon his unauthorized employment and made illogical inferences from his past criminal history. The district court did not abuse its discretion in imposing Gomez-Yanez’s sentence. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007). The record reflects that Gomez-Yanez’s past employment and his history of driving under the influence were relevant to the 18 U.S.C. § 3553(a) sentencing factors, including the need to promote respect for the law, afford adequate deterrence, and protect the public. The within-Guidelines sentence is substantively reasonable.

AFFIRMED.

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