gno.law

United States v. Heriberto Navarrete-Jimenez

Court of Appeals for the Ninth Circuit · 10-50471 · 2011-06-09 · Unpublished

UNITED STATES of America, Plaintiff—Appellee, v. Heriberto NAVARRETE-JIMENEZ, A.K.A. Erik Navarete-Jimenez, Defendant—Appellant

Area
other
Panel
Richard A. Paez (author), Thomas, Harry Pregerson

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FILED NOT FOR PUBLICATION JUN 09 2011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. 10-50471 Plaintiff - Appellee, D.C. No. 3:09-cr-04455-WQH v. MEMORANDUM * HERIBERTO NAVARRETE-JIMENEZ, a.k.a. Erik Navarete-Jimenez, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California William Q. Hayes, District Judge, Presiding Submitted May 24, 2011 ** Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.

Heriberto Navarrete-Jimenez appeals from the 12-month sentence imposed upon revocation of supervised release. 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). Navarrete-Jimenez first contends that the district court imposed a procedurally unreasonable sentence because it failed to consider the sentencing factors set forth in 18 U.S.C. § 3583(e) and his mitigation arguments. However, “the record makes clear that the district court considered the evidence and arguments of the defendant and based its sentence on an analysis of the advisory Guidelines range and the provisions of [18 U.S.C. § 3583(e)].” United States v. Stoterau, 524 F.3d 988, 1000 (9th Cir. 2008).

Navarrete-Jimenez next contends that his sentence is substantively unreasonable because the district court improperly focused on the timing of the violation and discounted the mitigating factors. In light of the totality of the circumstances, including the brief period of time between Navarrete-Jimenez’s release from custody and his illegal return to the United States, the sentence is not substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51 (2007).

Navarrete-Jimenez last contends that § 3583(e)(3) is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543 U.S. 220 (2005). As he concedes, this contention is foreclosed by United States v. Huerta-Pimental, 445 F.3d 1220, 1223-25 (9th Cir. 2006), and United States v. Santana, 526 F.3d 1257, 1262 (9th Cir. 2008).

AFFIRMED.

2 10-50471

Cites, in this corpus