United States v. Sergio Martinez

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NOT FOR PUBLICATION APR 14 2010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. 09-50357

Plaintiff - Appellee, D.C. No. 2:09-cr-00120-AHM

v.
MEMORANDUM *
SERGIO ALEJANDRO AVALOS
MARTINEZ, AKA Sergio A. Avalos,
AKA Jose Campos, AKA Sergio
Alejandro Avalos,

Defendant - Appellant.

Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding

Submitted April 5, 2010 **

Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.

Sergio Alejandro Avalos Martinez appeals from the 60-month sentence

*
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
imposed following his guilty-plea conviction for being an illegal alien found in the

United States following deportation, in violation of 8 U.S.C. § 1326(a). We have

jurisdiction pursuant to 28 U.S.C. § 1291. We affirm, but remand to correct the

judgment.

Avalos Martinez contends that the district court procedurally erred at

sentencing by failing to address his nonfrivolous arguments in support of a lower

sentence. Avalos Martinez further contends that his sentence is substantively

unreasonable because: (1) the applicable Guidelines range overemphasizes the

seriousness of his criminal history; and (2) the sentence results in unwarranted

sentence disparities. The record reflects that the district court did not procedurally

err, and that, in light of the totality of the circumstances, the sentence below the

Guidelines range is not substantively unreasonable. See United States v. Carty,

520 F.3d 984, 991-93 (9th Cir. 2008) (en banc); see also United States v. Vasquez-

Landaver, 527 F.3d 798, 804-05 (9th Cir. 2008) (holding that the district court did

not err by declining to impose the sentence that the defendant would have received

pursuant to a fast-track plea agreement that the defendant had rejected).

We remand the case to the district court with instructions that it delete from

the judgment the reference to 8 U.S.C. § 1326(b)(2). See United States v. Rivera-

NC/Research 2 09-50357
Sanchez, 222 F.3d 1057, 1062 (9th Cir. 2000).

AFFIRMED; REMANDED to correct the judgment.

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