United States v. Juan Heredia-Pantaleon

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 21 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-50532 Plaintiff-Appellee, D.C. No. 3:15-cr-01975-LAB v. MEMORANDUM* JUAN HEREDIA-PANTALEON, Defendant-Appellant.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted February 14, 2017** Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.

Juan Heredia-Pantaleon appeals from the district court’s judgment and challenges the 30-month sentence and 3-year term of supervised release 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.

* 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). § 1291, and we affirm.

Heredia-Pantaleon contends that the government breached the parties’ plea agreement at the sentencing hearing by implicitly suggesting that it did not support the stipulated two-level fast-track departure under U.S.S.G. § 5K3.1. This claim fails because the record reflects that, in its sentencing summary chart and at the sentencing hearing, the government stood by its recommendation that Heredia- Pantaleon receive the stipulated fast-track departure. The challenged statements were offered in response to Heredia-Pantaleon’s request for additional downward departures, which the plea agreement permitted the government to oppose. See United States v. Moschella, 727 F.3d 888, 892 (9th Cir. 2013) (no breach where “the plea agreement specifically authorized the government’s arguments”).

Heredia-Pantaleon next contends that the district court procedurally erred by basing its rejection of the fast-track departure on its desire to achieve a particular Guidelines range. This argument is belied by the record, which reflects that the court followed the proper sentencing procedure. See United States v. Rosales-Gonzales, 801 F.3d 1177, 1181-82 (9th Cir. 2015).

Heredia-Pantaleon finally contends that his sentence is substantively unreasonable in light of the district court’s denial of his requests for fast-track and 2 15-50532 criminal-history departures and the 18 U.S.C. § 3553(a) sentencing factors.

The court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The custodial sentence is substantively reasonable in light of the section 3553(a) factors and the totality of the circumstances, including Heredia- Pantaleon’s criminal and immigration history. See Gall, 552 U.S. at 51.

Moreover, the supervised release term is substantively reasonable in light of the need for deterrence. See U.S.S.G. § 5D1.1 cmt. n.5; United States v. Valdavinos- Torres, 704 F.3d 679, 693 (9th Cir. 2012).

AFFIRMED.

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