FILED
NOT FOR PUBLICATION DEC 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-50153
Plaintiff - Appellee, D.C. No. 2:11-cr-00470-CAS
v.
MEMORANDUM*
HECTOR CARRILLO, a.k.a. Hector Israel
Carrillo, a.k.a. Hector I. Carrillo-Jimenez,
a.k.a. Moises Madrigal,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Hector Carrillo appeals from the district court’s judgment and challenges the
60-month sentence imposed following his guilty-plea conviction for illegal reentry
after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28
*
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).
U.S.C. § 1291. We review unpreserved claims of procedural error for plain error
and the substantive reasonableness of a sentence for abuse of discretion. See
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). We
affirm, but remand with instructions to the district court to correct the judgment.
Carrillo contends that the district court improperly punished him for his
decision to reject a fast-track plea. The record does not support this contention.
The court properly declined to grant a departure under U.S.S.G. § 5K3.1.
Nevertheless, it varied downward because the government was not prejudiced by
Carrillo’s rejection of the fast-track plea.
Carrillo next contends that the court erred by failing to address his policy-
based argument under Kimbrough v. United States, 552 U.S. 85 (2007), and by
failing to acknowledge the parsimony principle of 18 U.S.C. § 3553(a)(2). The
court acknowledged that the Guidelines are advisory and adequately explained the
sentence in light of the 18 U.S.C. § 3553(a) sentencing factors. Its failure to do
more was not plain error. See United States v. Ayala-Nicanor, 659 F.3d 744, 752
(9th Cir. 2011).
Carrillo contends that his sentence is substantively unreasonable because the
district court should have granted a cultural assimilation departure. As Carrillo
concedes, our review of departures is limited to determining whether the district
court imposed a substantively reasonable sentence. See United States v. Vasquez-
2 12-50153
Cruz, 692 F.3d 1001, 1008 (9th Cir. 2012), cert. denied, 134 S. Ct. 76 (2013). The
sentence 10 months below the low end of the advisory Guidelines is substantively
reasonable in light of the totality of the circumstances and the section 3553(a)
factors. See Gall v. United States, 552 U.S. 38, 51 (2007).
Carrillo also contends that the district court erred procedurally by failing to
explain why a term of supervised release was warranted in light of U.S.S.G.
§ 5D1.1(c) (2011). The record reflects that the district court considered the
probation officer’s recommendation and determined that a supervised release term
was warranted. Carrillo has not shown a reasonable probability that he would have
received a different sentence absent the alleged error. See United States v.
Waknine, 543 F.3d 546, 553 (9th Cir. 2008).
Finally, Carrillo argues that Almendarez-Torres v. United States, 523 U.S.
224 (1998), is no longer good law. This contention is foreclosed by United States
v. Beng-Salazar, 452 F.3d 1088, 1091 (9th Cir. 2006).
In accordance with United States v. Rivera-Sanchez, 222 F.3d 1057, 1062
(9th Cir. 2000), we remand the case to the district court with instructions that it
delete from the judgment the reference to section 1326(b)(2).
AFFIRMED; REMANDED to correct the judgment.
3 12-50153