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NOT FOR PUBLICATION APR 11 2014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.
3