United States v. Ricardo Espino-Ibarra

FILED
NOT FOR PUBLICATION APR 11 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 12-50391

Plaintiff - Appellee, D.C. No. 3:12-cr-01355-LAB-1

v.
MEMORANDUM*
RICARDO ESPINO-IBARRA,

Defendant - Appellant.

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

Submitted April 8, 2014**
Pasadena, California

Before: FERNANDEZ, N.R. SMITH, and MURGUIA, Circuit Judges.

Ricardo Espino-Ibarra appeals his sentence of 18 months’ imprisonment plus

three years’ supervised release for his conviction for illegal reentry after removal in

violation of 8 U.S.C. § 1326.

*
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).
We review a sentence for abuse of discretion in two steps. Gall v. United

States, 552 U.S. 38, 51 (2007). First, we ensure that the district court did not

commit any significant procedural errors. Id. Second, once we determine that the

sentence was procedurally sound, we review the substantive reasonableness of the

sentence. Id.

Espino-Ibarra appears to have waived his procedural challenge to the district

court’s offer to delay his sentencing for one year and then sentence him to five

years of probation. See United States v. Gillenwater, 717 F.3d 1070, 1073 n.1 (9th

Cir. 2013) (explicitly limiting appeal to particular arguments waives other

arguments). Even if not waived, the district court’s offer was not plain error. The

district court did not act contrary to law by making the suggestion. United States v.

Ameline, 409 F.3d 1073, 1078 (9th Cir. 2005) (en banc) (an error is plain if it is

contrary to law). Nor has Espino-Ibarra shown a reasonable probability that he

would have received a different sentence absent the district court’s suggestion. See

id.

The district court began each sentencing proceeding by referencing or

calculating the correct Guidelines range. The Guidelines range was one of several

appropriate factors that the district court considered in fashioning the sentence. See

United States v. Autery, 555 F.3d 864, 871-73 (9th Cir. 2009).

2
Because we conclude that Espino-Ibarra’s sentence was procedurally sound,

we review the substantive reasonableness of the sentence for abuse of discretion.

United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The sentence

was reasonably based on the 18 U.S.C. § 3353(a) factors, specifically, the need to

deter criminal conduct. See 18 U.S.C. § 3353(a)(2)(B). The district court arrived at

this sentence independent of Espino-Ibarra’s decision not to delay his sentencing,

and the sentence was not greater than necessary to serve the § 3353(a) factors.

AFFIRMED.