United States v. Juan Cruz-Rodriguez
UNITED STATES of America, Plaintiff—Appellee, v. Juan CRUZ-RODRIGUEZ, Defendant—Appellant
- Proceeding
- appeal
- Trial court
- United States District Court for the Southern District of California
- Trial judge
- Larry Alan Burns (district judge)
- Outcome
- affirmed — AFFIRMED.
- Area
- criminal
- Panel
- Alfred T. Goodwin (author), William T. Wallace, Richard R. Clifton
Analysis
No analysis yet. When one exists it is a model's reading of this opinion — the rulings it reviewed, whether it agrees with the court, and the authorities it checked — shown beside the court's own disposition, never in place of it. How analyses are made.
Opinion
FILED NOT FOR PUBLICATION JAN 05 2011
MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50040 Plaintiff - Appellee, D.C. No. 3:09-cr-04631-LAB v. MEMORANDUM *
JUAN CRUZ-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted December 14, 2010 ** Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
Juan Cruz-Rodriguez appeals from the 30-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, 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 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Cruz-Rodriguez contends the district court violated his due process rights by failing to give him notice and an opportunity to respond as required by Federal Rule of Criminal Procedure 32(h) (“Rule 32(h)”) before imposing an upward departure. The record indicates the district court imposed a variance rather than a departure, and therefore Rule 32(h) does not apply. See Irizarry v. United States, 553 U.S. 708, 714 (2008) (concluding that Rule 32(h) applies only to departures).
Cruz-Rodriguez argues that the district court violated his due process rights by relying on unproven facts when imposing his sentence. This claim fails because Cruz-Rodriguez has not met his burden in demonstrating that the challenged information was either false or unreliable or that it demonstrably made the basis for his sentence. See United States v. Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir.
2009).
Cruz-Rodriguez further contends that the district court misapplied the Guidelines’ provisions regarding departures and as a result, imposed a substantively unreasonable sentence. This claim is not persuasive because the record reveals that the district court did not impose a departure. Moreover, considering the totality of the circumstances, including the 18 U.S.C. § 3553(a)
sentencing factors, the district court did not abuse its discretion by imposing a 2 10-50040 sentence six months above the applicable Sentencing Guidelines range. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
AFFIRMED.
3 10-50040