United States v. Salvador Bustos-Gutierrez

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 23, 2019
• Docket: 18-50081
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 18-50081

Plaintiff-Appellee, D.C. No. 3:17-cr-03392-LAB

v. MEMORANDUM* SALVADOR BUSTOS-GUTIERREZ, a.k.a. Santos Carrillo,

Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Submitted January 15, 2019**

Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.

Salvador Bustos-Gutierrez appeals from the district court’s judgment and

challenges the 50-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). Bustos-Gutierrez contends that the district court abused its discretion by

denying the parties’ joint request for a four-level, fast-track departure under

U.S.S.G. § 5K3.1. He argues that the court acted pursuant to an improper blanket

policy of denying fast-track adjustments to defendants with a prior immigration

history. The record belies Bustos-Gutierrez’s claim. The district court explained

that it was denying a fast-track departure in Bustos-Gutierrez’s case because of his

particular circumstances, especially his extensive immigration record, his prior

participation in the fast-track program, and his criminal history. See United States

v. Rosales-Gonzales, 801 F.3d 1177, 1183-84 (9th Cir. 2015).

Bustos-Gutierrez next contends that the sentence is substantively

unreasonable because the district court gave excessive weight to the need to deter

and too little weight to his personal characteristics. The district court did not abuse

its discretion. 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 within-Guidelines sentence is substantively reasonable in light of the 18

U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including

the length of Bustos-Gutierrez’s prior sentences for the same offense, see United

States v. Burgos-Ortega, 777 F.3d 1047, 1056-57 (9th Cir. 2015), and does not

create unwarranted sentencing disparities.

AFFIRMED.

2 18-50081