United States v. Serafin Hernandez-Garcia
UNITED STATES of America, Plaintiff-Appellee, v. Serafin HERNANDEZ-GARCIA, Defendant-Appellant
- Area
- other
- Panel
- Stephen S. Trott (author), Gould, Johnnie B. Rawlinson
Analysis
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Opinion
FILED NOT FOR PUBLICATION OCT 27 2011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. 11-50089 Plaintiff - Appellee, D.C. No. 3:09-cr-01802-GT v. MEMORANDUM * SERAFIN HERNANDEZ-GARCIA, Defendant - Appellant.
Appeal from the United States District Court for the Southern District of California Gordon Thompson, District Judge, Presiding Submitted October 25, 2011 ** Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
Serafin Hernandez-Garcia appeals from the 33-month sentence imposed following his conviction for being a deported 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 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. Appellant. P. 34(a)(2). Hernandez-Garcia contends that the district court improperly departed upward on the basis of criminal history when calculating his Guidelines range, and that the district court failed to provide the requisite reasoned explanation of the departure. This contention is without merit, where the record shows that district did not procedurally err and “any deviation from the applicable advisory guidelines range will be viewed as an exercise of the district court’s post-Booker discretion and reviewed only for reasonableness.” See United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006); see also United States v. Ellis, 641 F.3d 411, 421-22 (9th Cir. 2011) (affirming that “it is not necessary to consider whether the district court correctly applied U.S.S.G. § 4A1.3 ... [but] only whether the defendant’s ultimate sentence was reasonable”). In light of the totality of the circumstances and the 18 U.S.C. § 3553(a) sentencing factors, the sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
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