United States v. Oscar Nolasco-Tellez

Opinion

FILED NOT FOR PUBLICATION DEC 20 2016

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

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50511 Plaintiff-Appellee, D.C. No. 3:15-cr-01835-DMS v. MEMORANDUM* OSCAR JAVIER NOLASCO-TELLEZ, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted December 14, 2016** Before: WALLACE, LEAVY, and FISHER, Circuit Judges.

Oscar Javier Nolasco-Tellez appeals from the district court’s judgment and challenges the 36-month sentence imposed following his guilty-plea conviction for being a removed 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 Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Nolasco-Tellez contends that the district court procedurally erred by failing to consider U.S.S.G. § 4A1.3. We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 & n.3 (9th Cir. 2010), and find none.

The district court did not depart upward on the basis that Nolasco-Tellez’s criminal history category was inadequate. Accordingly, section 4A1.3 was not a “pertinent policy statement” that the district court was required to consider under 18 U.S.C.

§ 3553(a)(5).

Nolasco-Tellez next contends that the district court erred under Federal Rule of Criminal Procedure 32(h) by imposing an above-Guidelines sentence without providing prior notice. Contrary to Nolasco-Tellez’s contention, the record reflects that the district court imposed an upward variance based on the 18 U.S.C.

§ 3553(a) factors. Accordingly, the district court was not required to provide notice under Rule 32(h). See United States v. Moschella, 727 F.3d 888, 893 (9th Cir. 2013) (“A district court is not required under Rule 32(h) to give advance notice before imposing a sentence outside of the advisory guideline range if the sentence is the result of a variance.”).

Finally, Nolasco-Tellez contends that his sentence is substantively unreasonable. The district court did not abuse its discretion in imposing Nolasco-Tellez’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007).

2 15-50511 The above-Guidelines sentence is substantively reasonable in light of the section 3553(a) sentencing factors and the totality of the circumstances, including Nolasco-Tellez’s criminal and immigration history as well as his failure to be deterred by prior sentences. See United States v. Burgos-Ortega, 777 F.3d 1047, 1056–57 (9th Cir. 2015).

AFFIRMED.

3 15-50511