United States v. Refugio Gallegos-Valdivias

441 F. App'x 423

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 29, 2011
• Docket: 10-10296
• Status: Unpublished

Opinion

MEMORANDUM **

Refugio Gallegos-Valdivias appeals from the 57-month sentence imposed following his guilty-plea conviction for reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Gallegos-Valdivias contends, first, that the district court miscalculated or overstated his Criminal History Category when it imposed two points under U.S.S.G. § 4Al.l(d). Gallegos-Valdivias does not dispute that he was under a criminal justice sentence at the time that he violated section 1326; rather, he disputes the validity of that sentence. His argument fails because he cannot attack his state parole suspension or revocation collaterally in a federal sentencing proceeding. See Unit ed States v. Burrows, 36 F.3d 875, 884-86 (9th Cir.1994).

Next, he contends that the district court’s statements at sentencing did not adequately address his various arguments in favor of a lower sentence. The record reflects that the district judge considered the parties’ arguments at sentencing and had a “reasoned basis for exercising his own legal decisionmaking authority.” See United States v. Carty, 520 F.3d 984, 996 (9th Cir.2008) (en banc) (internal quotations omitted).

Finally, Gallegos-Valdivias challenges section 2L1.2(b)(l)(A)’s 16-level enhancement as unreasonable and lacking in empirical foundation and argues that its application in his case resulted in a substantively unreasonable sentence in view of the age of his triggering offense. These contentions are also without merit. Application of the enhancement “serve[d] the legitimate [Congressional] interest of deterring illegal reentry by those who have committed drug-related” crimes, see United States v. Ruiz-Chairez, 493 F.3d 1089, 1091 (9th Cir.2007), and the Guidelines sentence imposed was reasonable under 18 U.S.C. § 3553(a) and the totality of the circumstances, which reveals a pattern of illegal reentry and drug crime, see Carty, 520 F.3d at 993.

AFFIRMED.

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