United States v. Miguel Espino-Valverde

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 18, 2018
• Docket: 17-50257
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-50257

Plaintiff-Appellee, D.C. No. 3:16-cr-02835-BEN

v. MEMORANDUM* MIGUEL ESPINO-VALVERDE,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Submitted September 12, 2018**

Before: LEAVY, HAWKINS, and TALLMAN, Circuit Judges.

Miguel Espino-Valverde appeals from the district court’s judgment and

challenges the 46-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.

* 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). Espino-Valverde contends that his sentence is substantively unreasonable in

light of his personal characteristics, including his mental health issues, and the fact

that he has not committed any non-immigration offenses since 1996. The district

court did not abuse its discretion when it imposed Espino-Valverde’s sentence.

See Gall v. United States, 552 U.S. 38, 51 (2007). “The weight to be given the

various factors in a particular case is for the discretion of the district court.”

United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009). The above-

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

sentencing factors and the totality of circumstances, including Espino-Valverde’s

six prior removals from the United States and the 37-month and 46-month

sentences he received for his two previous immigration offenses. See United

States v. Burgos-Ortega, 777 F.3d 1047, 1056 (9th Cir. 2015).

Moreover, contrary to Espino-Valverde’s argument, the court’s erroneous

assumption that he had previously received a fast-track departure does not make

his sentence substantively unreasonable. After that assumption was corrected, the

court granted a fast-track departure, and nevertheless concluded that a 46-month

sentence was warranted. The record reflects that the court considered Espino-

Valverde’s mitigating arguments and adequately explained the sentence. See

United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).

AFFIRMED.

2 17-50257