FILED
NOT FOR PUBLICATION JAN 05 2011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. 10-50040
Plaintiff - Appellee, D.C. No. 3:09-cr-04631-LAB
v. MEMORANDUM *
JUAN CRUZ-RODRIGUEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted December 14, 2010 **
Before: GOODWIN, WALLACE, and CLIFTON, Circuit Judges.
Juan Cruz-Rodriguez appeals from the 30-month sentence imposed
following his guilty-plea 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. App. P. 34(a)(2).
Cruz-Rodriguez contends the district court violated his due process rights by
failing to give him notice and an opportunity to respond as required by Federal
Rule of Criminal Procedure 32(h) (“Rule 32(h)”) before imposing an upward
departure. The record indicates the district court imposed a variance rather than a
departure, and therefore Rule 32(h) does not apply. See Irizarry v. United States,
553 U.S. 708, 714 (2008) (concluding that Rule 32(h) applies only to departures).
Cruz-Rodriguez argues that the district court violated his due process rights
by relying on unproven facts when imposing his sentence. This claim fails because
Cruz-Rodriguez has not met his burden in demonstrating that the challenged
information was either false or unreliable or that it demonstrably made the basis for
his sentence. See United States v. Vanderwerfhorst, 576 F.3d 929, 935-36 (9th Cir.
2009).
Cruz-Rodriguez further contends that the district court misapplied the
Guidelines’ provisions regarding departures and as a result, imposed a
substantively unreasonable sentence. This claim is not persuasive because the
record reveals that the district court did not impose a departure. Moreover,
considering the totality of the circumstances, including the 18 U.S.C. § 3553(a)
sentencing factors, the district court did not abuse its discretion by imposing a
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sentence six months above the applicable Sentencing Guidelines range. See United
States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).
AFFIRMED.
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