FILED
NOT FOR PUBLICATION APR 14 2010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. 09-50350
Plaintiff - Appellee, D.C. No. 3:08-CR-03747-JAH
v.
MEMORANDUM *
JOSE GUADALUPE ESTRADA-
DELGADO,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Jose Guadalupe Estrada-Delgado appeals from the 15-month sentence
imposed following his guilty-plea conviction for making and possessing false entry
*
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).
NC/Research
documents, in violation of 18 U.S.C. § 1546(a). We have jurisdiction pursuant to
28 U.S.C. § 1291, and we affirm.
Estrada-Delgado contends that the district court sentenced him based on
clearly erroneous factual findings that: (1) the offense involved “solicitation;” and
(2) his criminal history included an offense involving the sale of drugs. He further
contends that the district court’s reliance upon the latter violates his Sixth
Amendment and Due Process rights. The record reflects that the district court did
not rely upon clearly erroneous facts. Accordingly, these contentions fail.
Estrada-Delgado also contends that the district court’s consideration of his
criminal history at sentencing violates the Sixth Amendment’s Double Jeopardy
Clause. This contention fails because, even though Estrada-Delgado’s sentence is
affected by his criminal history, he is only being punished for one crime. See
United States v. Wright, 891 F.2d 209, 212 (9th Cir. 1989).
Finally, Estrada-Delgado contends that the district court erroneously
believed that extraordinary circumstances were required in order for it to vary
below the Guidelines range, and that the sentence is substantively unreasonable.
The record reflects that the district court properly considered the Guidelines range
as a baseline, and then “tailor[ed] a sentence to the individualized offense and
offender characteristics of [Estrada-Delgado’s] case in consideration of the
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§ 3553(a) factors.” See United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008)
(en banc). Moreover, in light of all of the circumstances in the case, the sentence
imposed is substantively reasonable. See id. at 995-96.
AFFIRMED.
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