United States v. Jorge Cordova-Villa

FILED
NOT FOR PUBLICATION SEP 13 2010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. 10-50007

Plaintiff - Appellee, D.C. No. 3:08-cr-04387-BEN-1

v.
MEMORANDUM *
JORGE CORDOVA-VILLA,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding

Submitted September 1, 2010 **
Pasadena, California

Before: O’SCANNLAIN, FISHER and GOULD, Circuit Judges.

Jorge Cordova-Villa appeals his sentence following a guilty plea to a single

count of attempting to enter the United States after being previously removed. See

*
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).
8 U.S.C. § 1326. As the facts are known to the parties, we repeat them here only as

necessary to explain our decision.

Cordova-Villa first contends that the sentence the district court imposed was

substantively and procedurally unreasonable because the district court judge

improperly considered his criminal history three times in selecting a sentence

above the Guidelines minimum. We disagree. District courts are explicitly

required to consider “the history and characteristics of the defendant” when

imposing a sentence. 18 U.S.C. § 3553(a)(1). The district court’s consideration of

Cordova-Villa’s criminal history for more than one purpose under the Guidelines

was proper. See United States v. Stoterau, 524 F.3d 988, 1001 (9th Cir. 2008).

Cordova-Villa contends that the district court erred by refusing to grant a

continuance. We disagree. At sentencing, Cordova-Villa requested a continuance

to speak to the probation office about mitigating evidence related to duress. The

district court made clear that even if Cordova-Villa did so, it would not impact his

sentence, and noted that the court had already reviewed Cordova-Villa’s

allegations of mitigating evidence in a filing under seal. Accordingly, the district

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court did not abuse its discretion by denying Cordova-Villa’s requested

continuance. See United States v. Garrett, 179 F.3d 1143, 1144–45 (9th Cir. 1999)

(en banc).

Cordova-Villa next argues that the district court erred by relying on his post-

arrest silence to deny his request for a reduced sentence based on mitigating

evidence of duress. We disagree. Because Cordova-Villa did not raise this

objection before the district court, we review the district court’s decision for plain

error. See United States v. Rendon-Duarte, 490 F.3d 1142, 1146 (9th Cir. 2007).

Cordova-Villa’s sentence was unaffected by any potentially improper inferences

drawn by the district court. For that reason, Cordova-Villa’s substantial rights

were not affected, nor were the fairness, integrity, or public reputation of judicial

proceedings. See United States v. Olano, 507 U.S. 725, 732 (1993).

III

Cordova-Villa’s final claim is that the district court violated the principle set

forth in Apprendi v. New Jersey, 530 U.S. 466 (2000), by imposing a sentence that

violated the parsimony principle embedded in section 3553(a). We reject this

claim because it is directly foreclosed by our decision in United States v. Chavez,

611 F.3d 1006, 1009–10 (9th Cir. 2010) (per curiam).

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IV

For the foregoing reasons, the judgment of the district court is

AFFIRMED.