United States v. Martin Garcia-Moreno

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 11, 2020
• Docket: 19-50270
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 11 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-50270

Plaintiff-Appellee, D.C. No. 3:19-cr-01507-AJB-1

v. MEMORANDUM* MARTIN GARCIA-MORENO,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Anthony J. Battaglia, District Judge, Presiding

Submitted June 2, 2020**

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

Martin Garcia-Moreno appeals from the district court’s judgment and

challenges the 30-month sentence imposed following his guilty-plea conviction for

attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. 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). Garcia-Moreno contends that the district court procedurally erred in a

variety of ways, and imposed a substantively unreasonable sentence, by providing

an internally inconsistent justification for the sentence. We review Garcia-

Moreno’s procedural claims for plain error, see United States v. Valencia-

Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and his claim that his sentence is

substantively unreasonable for abuse of discretion, see Gall v. United States, 552

U.S. 38, 51 (2007).

The record demonstrates that the district court’s explanation for the sentence

was not internally inconsistent. The district court discussed Garcia-Moreno’s

“long history of immigration convictions” and acknowledged the unlikelihood of

deterring him, but explained that general and specific deterrence, as well as the

need to punish and to avoid unwarranted sentencing disparities, remained

important sentencing considerations. The court also acknowledged and gave

weight to Garcia-Moreno’s mitigating argument concerning his early guilty plea.

On this record, the court did not commit plain procedural error. See United States

v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc). Moreover, the within-

Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a)

sentencing factors and the totality of the circumstances. See Gall, 552 U.S. at 51.

Garcia-Moreno also argues that his sentence violates the Sixth Amendment

because it exceeds two years and he did not admit, nor did a jury find, that he had a

2 19-50270 prior felony conviction. As Garcia-Moreno concedes, Almendarez-Torres v.

United States, 523 U.S. 224, 235 (1998), forecloses his argument. Contrary to his

contention, United States v. Haymond, 139 S. Ct. 2369 (2019), did not overrule

Almendarez-Torres. See Haymond, 139 S. Ct. at 2377 n.3 (Almendarez-Torres is

not implicated by the issue decided in Haymond); see also United States v. Leyva-

Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (“Almendarez-Torres is binding unless

it is expressly overruled by the Supreme Court.”).

AFFIRMED.

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