FILED
NOT FOR PUBLICATION DEC 19 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10606
Plaintiff - Appellee, D.C. No. 4:12-cr-00400-CKJ
v.
MEMORANDUM*
JAIME ALARCON-HERNANDEZ, a.k.a.
Jaime Alarcon,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Cindy K. Jorgenson, District Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Jaime Alarcon-Hernandez appeals from the district court’s judgment and
challenges the 46-month sentence imposed following his guilty-plea conviction for
reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction
*
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).
under 28 U.S.C. § 1291, and we affirm.
Alarcon-Hernandez contends that the district court erred by determining that
his prior conviction for attempted second-degree sexual assault constitutes an
aggravated-felony conviction under 8 U.S.C. § 1101(a)(43)(A) that bars him from
eligibility for a departure under U.S.S.G. § 2L1.2 cmt. n.7. Even if the district
court erred in its aggravated-felony determination, it understood that it had the
discretion to sentence Alarcon-Hernandez outside of the advisory Guidelines range
but declined to do so in light of the 18 U.S.C. § 3553(a) sentencing factors.
Alarcon-Hernandez does not contend that the district court imposed a substantively
unreasonable sentence, nor would such a contention be availing on this record.
Thus, we identify no basis for reversing. See United States v. Vasquez-Cruz,
692 F.3d 1001, 1005 (9th Cir. 2012) (“[A]ny erroneous application of [a] departure
would be harmless so long as the sentence actually imposed was substantively
reasonable.”).
AFFIRMED.
2 12-10606