United States v. Miguel Avila-Quezada
UNITED STATES of America, Plaintiff-Appellee, v. Miguel Angel AVILA-QUEZADA, Defendant-Appellant
- Area
- other
- Panel
- Mary M. Schroeder (author), Johnnie B. Rawlinson, Harry Pregerson
Analysis
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Opinion
FILED NOT FOR PUBLICATION MAR 31 2010
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. 09-50303 Plaintiff - Appellee, D.C. No. 3:08-CR-02023-TJW v. MEMORANDUM * MIGUEL ANGEL AVILA-QUEZADA, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding Submitted March 16, 2010 ** Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
Miguel Angel Avila-Quezada appeals from the 57-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 pursuant to * 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).
DAT/Research 28 U.S.C. § 1291, and we affirm.
Avila-Quezada contends that the district court procedurally erred by, among other things, applying a 16-level enhancement pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii) because there was insufficient evidence as to the nature of his predicate conviction. The district court did not err by relying on the uncontroverted pre-sentence report to determine that Avila-Quezada’s conviction was categorically a violent felony. See United States v. Romero-Rendon, 220 F.3d 1159, 1165 (9th Cir. 2000); see also United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir. 2009) (per curiam).
Next, he asserts that the fact of the prior conviction was required to be charged in the indictment, submitted to a jury, and proven beyond a reasonable doubt. This contention lacks merit. See Almendarez-Torres v. United States, 523 U.S. 224, 226-27 (1998); see also United States v. Almazan-Becerra, 482 F.3d 1085, 1091 (9th Cir. 2007).
Avila-Quezada also contends that the district court insufficiently explained why it rejected his downward-departure motion for cultural assimilation. This contention is belied by the totality of the record, which contained an adequate explanation. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
DAT/Research 2 09-50303 Finally, he argues his sentence is substantively unreasonable pursuant to United States v. Amezcua-Vasquez, 567 F.3d 1050, 1058 (9th Cir. 2009), because, among other reasons, his qualifying crime-of-violence conviction was too stale.
However, in the instant case, unlike the offense in Amezcua-Vasquez, the predicate felony was not too old to score under the Sentencing Guidelines’ criminal history provisions. See U.S.S.G. § 4A1.2(e)(1); see also Amezcua-Vasquez, 567 F.3d at 1058 (“We make no pronouncement as to the reasonableness of a comparable sentence were Amezcua’s conviction more recent[.]”). The record reflects that the sentence imposed was substantively reasonable, under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 53-60 (2007).
AFFIRMED.
DAT/Research 3 09-50303