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United States v. Efrain Alvarado-Gutierrez

Court of Appeals for the Ninth Circuit · 15-50159 · 2016-01-26 · Unpublished

UNITED STATES of America, Plaintiff-Appellee, v. Efrain ALVARADO-GUTIERREZ, A.K.A. Chibo, A.K.A. Efrain Gutierrez Alvarado, Defendant-Appellant

Area
other
Panel
William C. Canby, Jr. (author), Atsushi W. Tashima, Jacqueline H. Nguyen

Analysis

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Opinion

FILED NOT FOR PUBLICATION JAN 26 2016

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50159 Plaintiff - Appellee, D.C. No. 3:15-cr-07030-LAB v. MEMORANDUM* EFRAIN ALVARADO-GUTIERREZ, a.k.a. Chibo, a.k.a. Efrain Gutierrez Alvarado, Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted January 20, 2016** Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

Efrain Alvarado-Gutierrez appeals from the district court’s judgment and challenges the 12-month custodial sentence and two-year term of supervised release imposed upon revocation of supervised release. We have jurisdiction under * 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). 28 U.S.C. § 1291, and we affirm.

Alvarado-Gutierrez contends that the district court procedurally erred by failing to provide a reasoned basis for exercising its discretion under Kimbrough v. United States, 552 U.S. 85 (2007), to reject U.S.S.G. § 5D1.1(c). His reliance on Kimbrough is misplaced. While section 5D1.1(c) states that a district court should not ordinarily impose a term of supervised release if the defendant is a deportable alien, it also provides that supervised release may be appropriate in such cases if it will provide an added measure of deterrence. See U.S.S.G. § 5D1.1 cmt. n.5. The district court’s decision to impose supervised release on the basis of its finding that doing so would provide an added measure of deterrence in Alvarado-Gutierrez’s case was, therefore, consistent with the Guidelines.

Alvarado-Gutierrez also contends that the 12-month custodial sentence and two-year term of supervised release are substantively unreasonable. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The within-Guidelines custodial sentence and term of supervised release are substantively reasonable in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, including the need to afford adequate deterrence. See Gall, 552 U.S. at 51; United States v. Valdavinos-Torres, 704 F.3d 679, 692-93 (9th Cir. 2012).

AFFIRMED.

2 15-50159

Cites, in this corpus