United States v. Jesus Rodriguez-Moreno

FILED
NOT FOR PUBLICATION JUN 3 2011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. 10-50397

Plaintiff - Appellee, D.C. No. 3:08-cr-00540-JAH

v.
MEMORANDUM *
JESUS RODRIGUEZ-MORENO,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding

Submitted May 24, 2011 **

Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.

Jesus Rodriguez-Moreno appeals from the 77-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).
 Rodriguez-Moreno contends that the district court procedurally erred by

considering his non-scoring prior arrests in formulating the sentence, and failing to

adequately address his request for a lower sentence. Though the court mentioned

Rodriguez-Moreno’s non-scoring arrests when discussing his history and

characteristics under 18 U.S.C. § 3553(a), Rodriguez-Moreno has not shown that

the information formed a basis for the sentence. See United States v. Huckins, 53

F.3d 276, 280 (9th Cir. 1995) (“When a sentencing judge considers unreliable

information in sentencing, remand is required only if the challenged information is

‘demonstrably made the basis for the sentence.’”). Moreover, the district court

considered and addressed Rodriguez-Moreno’s arguments for a lower sentence

based on his medical condition. See United States v. Carty, 520 F.3d 984, 992 (9th

Cir. 2008) (en banc).

Rodriguez-Moreno also contends that the district court erred by denying his

motion for a downward departure based on physical impairment, pursuant to

U.S.S.G § 5H1.4. When an appellant makes such a contention, we will review the

ultimate sentence for reasonableness. See United States v. Mohamed, 459 F.3d

979, 986-87 (9th Cir. 2006).

Rodriguez-Moreno contends that the sentence is substantively unreasonable

in light of his deteriorating medical condition. Under the totality of the

2 10-50397
circumstances and the factors set forth in 18 U.S.C. § 3553(a), the sentence at the

low end of the Guidelines range is substantively reasonable. See Gall v. United

States, 552 U.S. 38, 51 (2007).

AFFIRMED.

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