United States v. Vega-Barajas

185 F. App'x 579

Opinion

MEMORANDUM **

We affirm the 57-month sentence the district court imposed on Arturo VegaBarajas for being an alien in the United States following deportation and a prohibited person in possession of a firearm. 8 U.S.C. § 1326; 18 U.S.C. § 922(g)(1). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). United States v. Plouffe, 436 F.3d 1062 (9th Cir.2006).

The district court properly found that Vega-Barajas’s prior conviction exposed him to a statutory maximum sentence of twenty years imprisonment for his current offenses. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998) (holding that prior convictions may be used to enhance a defendant’s sentence even if a jury did not find the fact of the conviction beyond a reasonable doubt); United States v. Pacheco-Zepeda, 234 F.3d 411, 414 (9th Cir. 2000) (holding that we must follow Almendarez-Torres until the Supreme Court overrules it).

We review Vega-Barajas’s ultimate sentence for reasonableness in light of the factors in 18 U.S.C. § 3553(a). See United States v. Booker, 543 U.S. 220, 261, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005). For a sentence to be reasonable, the district court must first accurately calculate an advisory sentence under the Sentencing Guidelines. See United States v. Cantrell, 433 F.3d 1269, 1279-81 (9th Cir.2006).

The district court properly enhanced Vega-Barajas’s offense level under U.S.S.G. § 2L1.2(b)(1)(A) and U.S.S.G. § 2K2.1(a)(4)(A). Vega-Barajas’s Sixth Amendment jury trial right did not bar using his prior conviction to enhance his offense level even though a jury did not find the fact of the prior conviction beyond a reasonable doubt. See United States v. Weiland, 420 F.3d 1062, 1079 & n. 16 (9th Cir.2005). Vega-Barajas’s conviction for Lewd Acts Upon a Child constitutes sexual abuse of a minor under U.S.S.G. § 2L1.2, and therefore the sixteen-level enhancement for a prior crime of violence enhancement applies to him. See United States v. Medina-Maella, 351 F.3d 944, 947 (9th Cir.2003). The district court properly found Vega-Barajas’s prior conviction of a crime of violence; Vega-Barajas admitted that he was convicted of Lewd Conduct Upon a Child. The court properly took judicial notice of documents that established the statute under which he was previously convicted and the fact of that conviction.

Vega-Barajas’s 57-month sentence is reasonable in light of the factors set forth in 18 U.S.C. § 3553(a). See Cantrell, 433 F.3d at 1279. The statutory factors require a district court to impose a sentence “sufficient, but not greater than necessary” to “reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense; to afford adequate deterrence to criminal conduct; to protect the public ...; and to provide the defendant with needed ... training, medical care, or other correctional treatment....” 18 U.S.C. § 3553(a)(2). The district court must also consider: the nature and circumstances of the offense; the defendant’s history and characteristics; the kinds of sentences available; the advisory sentencing guide lines range; the Sentencing Commission’s policy statements; unwarranted sentencing disparities; and restitution to victims. 18 U.S.C. § 3553(a)(1), (3)-(7).

The district court sufficiently considered the relevant factors when it sentenced Vega-Barajas. See United States v. Knows His Gun, 438 F.3d 913, 918 (9th Cir.2006) (holding that Booker requires the district court to consider the factors in section 3553(a)). A sentencing judge may sufficiently consider the sentencing factors even though he does not specifically articulate each factor or mechanically recite all of the factors at the sentencing hearing. Id.; see also United States v. Dean, 414 F.3d 725, 728-29 (7th Cir.2005). Here, the judge discussed the relevant considerations embodied in § 3553(a) and concluded that the most appropriate sentence was within the range the advisory sentencing guidelines recommended. Vega-Barajas’s 57-month sentence was well within the reasonable range of sentences the district court could have imposed in light of the § 3553(a) factors. See United States v. Zavala, 443 F.3d 1165, 1168-69 (9th Cir. 2006).

AFFIRMED.

Footnotes

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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 Cir. R. 36-3.