United States v. Raul Hernandez-Franco

455 F. App'x 790

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 27, 2011
• Docket: 11-30003
• Status: Unpublished

Opinion

MEMORANDUM **

Raul Hernandez-Franco appeals from the 57-month sentence imposed following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Hernandez-Franco contends the district court procedurally erred by failing to address his arguments relating to the intra-district disparity created by the government’s refusal to offer him a “fast track” plea agreement. The record reflects that the district court listened to and considered Hernandez-Franco’s arguments in this regard, but found the circumstances insufficient to warrant a sentence lower than the one imposed. See United States v. Carty, 520 F.3d 984, 995-96 (9th Cir.2008) (en banc); see also United States v. Banuelos-Rodriguez, 215 F.3d 969, 976 (9th Cir.2000) (en banc) (“Courts generally have no place interfering with a prosecutor’s discretion regarding whom to prosecute, what charges to file, and whether to engage in plea negotiations.”).

Hernandez-Franco also contends his sentence is substantively unreasonable because it is based on a 16-level enhancement under U.S.S.G. § 2L1.2(b) which lacks any empirical basis and triple counts his criminal history. The sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances. See Carty, 520 F.3d at 993.

AFFIRMED.

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