United States v. Eden Valdez-Angulo

FILED NOT FOR PUBLICATION APR 11 2014 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 13-10333 Plaintiff - Appellee, D.C. No. 2:13-cr-00326-SMM v. MEMORANDUM* EDEN VALDEZ-ANGULO, a.k.a. Eden Valdez Angulo, a.k.a. Miguel Valdez- Angulo, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Stephen M. McNamee, District Judge, Presiding Submitted April 7, 2014** Before: TASHIMA, GRABER, and IKUTA, Circuit Judges. Eden Valdez-Angulo appeals from the district court’s judgment and challenges the 48-month sentence imposed following his guilty-plea conviction for reentry of a removed alien, 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. Valdez-Angulo first contends that his sentence is substantively unreasonable because the imposition of two criminal history points under U.S.S.G. § 4A1.1(d) turned solely on the “happenstance” of the timing of his discovery by immigration officials. Relying on United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir. 2009), Valdez-Angulo also contends that his sentence is substantively unreasonable in light of his limited roles in his prior convictions, one of which resulted in a 16-level enhancement under U.S.S.G. § 2L1.2(b)(1)(A)(vii). The district court did not abuse its discretion in imposing Valdez-Angulo’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). Unlike the sentence in Amezcua-Vasquez, Valdez-Angulo’s below-Guidelines sentence properly reflects the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including Valdez-Angulo’s criminal and immigration history. See id. Finally, Valdez-Angulo contends that Almendarez-Torres v. United States, 523 U.S. 224 (1998), has been undermined and that 8 U.S.C. § 1326(b) is unconstitutional. As Valdez-Angulo concedes, this argument is foreclosed. See United States v. Almazan-Becerra, 482 F.3d 1085, 1091 (9th Cir. 2007). AFFIRMED. 2 13-10333