United States v. Ramirez-Bustamante

46 F. App'x 504

Opinion

MEMORANDUM **

Manuel Ramirez-Bustamante appeals the 41-month sentence imposed following his guilty-plea conviction for reentry after deportation in violation of 8 U.S.C. § 1326. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742, and we affirm.

Ramirez-Bustamante contends that the district court erroneously determined that it lacked authority to depart from the Sentencing Guidelines for reduced mental capacity under § 5K2.13. Ramirez-Bustamante alleges that this error resulted from the district court’s failure to 1) consider factors other than his record of arrests and convictions, and 2) make a precise and fact-specific determination, as required by United States v. Cantu, 12 F.3d 1506, 1516 (9th Cir.1993). We review for abuse of discretion a district court’s decision regarding departure, see United States v. Davis, 264 F.3d 813, 815 (9th Cir.2001), and find none.

The district court’s consideration of Ramirez-Bustamante’s psychiatric reports, arguments from his counsel regarding future treatment, and Ramirez-Bustamante’s likely circumstances upon release from incarceration, satisfied any individualized determination requirement pursuant to Cantu. See Cantu, 12 F.3d at 1516; Davis, 264 F.3d at 815-16. Once the district court considered these factors and determined that Ramirez-Bustamante’s criminal history indicated a need for incarceration to protect the public, it correctly found that it lacked authority to grant a departure under § 5K2.13 for reduced mental capacity. See Davis at 816.

Ramirez-Bustamante’s claim based on Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), is foreclosed by our decision in United States v. Pacheco-Zepeda, 234 F.3d 411 (9th Cir.), cert denied, 532 U.S. 966, 121 S.Ct. 1503, 149 L.Ed.2d 388 (2001).

AFFIRMED.

Footnotes

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.