FILED
NOT FOR PUBLICATION JAN 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 12-10616
12-10617
Plaintiff - Appellee,
D.C. Nos. 2:06-cr-00347-WBS
v. 2:12-cr-00190-WBS
JORGE FIGUEROA-BANUELOS, a.k.a. MEMORANDUM*
Jorge Banuelos, a.k.a. Jorge Banuelos-
Figueroa,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
In these consolidated appeals, Jorge Figueroa-Banuelos appeals from the
33-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; and the
*
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).
13-month consecutive sentence imposed upon revocation of supervised release.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm but remand to correct
the judgment.
Figueroa-Banuelos first contends that the district court procedurally erred by
relying on an erroneously calculated 2007 sentence as the starting point for the
illegal reentry sentence. This contention is unpersuasive. The district court used
the correctly calculated Guidelines range as the initial benchmark for the sentence
and properly considered the prior sentence as relevant to the need for deterrence
and the other 18 U.S.C. § 3553(a) sentencing factors. See United States v. Carty,
520 F.3d 984, 991-92 (9th Cir. 2008) (en banc).
Figueroa-Banuelos next contends that the district erred by ordering the
sentences for his illegal reentry conviction and supervised release revocation to run
consecutively. He argues that U.S.S.G. § 5D1.1(c) recognizes that a new illegal
reentry prosecution serves the goals of deterrence and public protection, and
therefore a consecutive sentence for a supervised release violation results in a
sentence that is longer than necessary. He further contends that the district court
did not adequately explain the need for consecutive sentences. We disagree.
Section 5D1.1(c) concerns the imposition of a term of supervised release, not the
sentence to be imposed upon revocation. See U.S.S.G. § 5D1.1(c). The record
2 12-10616 & 12-10617
reflects that the district court adequately explained that consecutive sentences were
needed to punish Figueroa-Banuelos’s breach of the court’s trust. See United
States v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007). Moreover, the aggregate
sentence is substantively reasonable in light of the relevant sentencing factors and
the totality of the circumstances. See 18 U.S.C. §§ 3553(a) and 3583(e); U.S.S.G.
§ 7B1.3(f) (recommending that any sentence imposed upon revocation of
supervised release be ordered to run consecutively); Gall v. United States, 552 U.S.
38, 51 (2007).
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). See United States v.
Herrera-Blanco , 232 F.3d 715, 719 (9th Cir. 2000) (remanding sua sponte to
delete the reference to section 1326(b)).
AFFIRMED; REMANDED to correct the judgment.
3 12-10616 & 12-10617