United States v. Omar Serrano-Guerrero

FILED NOT FOR PUBLICATION JUN 14 2010 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 09-50160 Plaintiff - Appellee, D.C. No. 2:08-cr-00759-ABC v. MEMORANDUM * OMAR ANGEL SERRANO- GUERRERO, a.k.a. Omar Angel Serrano, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Audrey B. Collins, Chief Judge, Presiding Submitted May 25, 2010 ** Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges. Omar Angel Serrano-Guerrero appeals from the 86-month sentence imposed following his guilty-plea conviction for being an illegal alien found in the United * 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). States following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. Serrano-Guerrero contends that the district court procedurally erred at sentencing by: 1) failing to consider all of the 18 U.S.C. § 3553 factors; 2) presuming that the Guidelines range was reasonable; and 3) failing to adequately address his mitigating arguments. The record reflects that the district court did not procedurally err. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc). Serrano-Guerrero also contends that the sentence is substantively unreasonable in light of the district court’s failure to depart downward based on Serrano-Guerrero’s lost opportunity to serve his federal sentence concurrent to a state sentence. The district court did not abuse its discretion by declining to impose a lower sentence on this basis. See id. at 993. Serrano-Guerrero also contends, for the first time on appeal, that the sentence is substantively unreasonable because the Guidelines range is based upon a 16-level enhancement for a relatively stale and minor drug trafficking offense. In light of the totality of the circumstances, the within-Guidelines sentence is substantively reasonable. See id.; cf. United States v. Amezcua-Vasquez, 567 F.3d 1050, 1055-56 (9th Cir. 2009). AFFIRMED. 2 09-50160