United States v. Yuris Bonilla-Guizar

633 F. App'x 451

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2016
• Docket: 14-10166, 14-10241
• Status: Unpublished

Opinion

MEMORANDUM **

In these companion appeals, Yuris Bon-illa-Guizar and Carlos Armando Calixtro-Bustamante appeal from their 144-month sentences. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in both cases.

In Appeal No. 14-10166, Bonilla-Guizar contends that the district court procedurally erred and violated his constitutional rights by concluding that his postsentenc-ing rehabilitation did not warrant a downward variance. This claim fails. The record belies Bonilla-Guizar’s contention that the district court denied his request based on his custodial status. Rather, the court considered Bonilla-Guizar’s request and sufficiently explained its determination that Bonilla-Guizar’s conduct in prison was not so exceptional as to warrant a downward variance. See United States v. Carty, 520 F.3d 984, 992 (9th Cir.2008) (en banc).

Bonilla-Guizar next contends that the district judge engaged in vindictive resen-tencing and imposed a substantively unreasonable sentence in light of the fact that his initial sentence was at the low end of the Guidelines range, but his current sentence is near the high end of the recalculated Guidelines range. We disagree. No presumption of vindictiveness arises because Bonilla-Guizar’s overall sentence has not been increased, and he has adduced no evidence of actual vindictiveness. See United States v. Horob, 735 F.3d 866, 870-72 (9th Cir.2013). Moreover, the district court’s imposition of a high-end sentence was not an abuse of discretion in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including the nature of the offense. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

In Appeal No. 14-10241, Calixtro-Bus-tamante contends that the district court erred by denying him a two-level adjustment for acceptance of responsibility under U.S.S.G. § 3E1.1. Contrary to Calix-tro-Bustamante’s argument, the record reflects that the court did not deny the adjustment based solely on his decision to go to trial. Rather, it also noted Calixtro-Bustamante’s failure to accept responsibility for his role in the offense. The court did not clearly err in denying the adjust ment. See United States v. Rojas-Pedroza, 716 F.3d 1253, 1270 (9th Cir.2013).

Finally, Calixtro-Bustamante contends that the district court erred by failing sua sponte to grant him a minor role adjustment under U.S.S.G. § 3B1.2. In light of the facts, including Calixtro-Bustamante keeping hostages in his home and calling their family members to demand money in exchange for their release, the district court did not clearly err by failing to grant the adjustment. See United States v. Rosas, 615 F.3d 1058, 1067-68 (9th Cir.2010).

Calixtro-Bustamante’s unopposed motion to supplement the record is granted.

AFFIRMED.

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