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NOT FOR PUBLICATION APR 11 2014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. 13-50177
Plaintiff - Appellee, D.C. No. 2:12-cr-00842-DSF
v.
MEMORANDUM*
CESAR VARELA-CRUZ, a.k.a. Cesar
Varela Cruz, a.k.a. Cesar Vrela Cruz, a.k.a.
Feliciano Sandoval Hernandez, a.k.a.
Sebastian Torres Rubio, a.k.a. Ceasar Cruz
Varela, a.k.a. Cesar Cruz Varela,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted April 7, 2014**
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
Cesar Varela-Cruz appeals from the district court’s judgment and challenges
the 77-month sentence imposed following his guilty-plea conviction for being an
*
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).
illegal alien found in the United States after deportation, in violation of 8 U.S.C.
§ 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm, but remand
to correct the judgment.
Varela-Cruz contends that his sentence is substantively unreasonable
because (i) the district court gave too much weight to his offense conduct and
criminal history, to the exclusion of his mitigating factors and remaining 18 U.S.C.
§ 3553(a) sentencing factors and (ii) it creates an unwarranted sentencing disparity
between his sentence and the sentences imposed on defendants with similar
criminal histories prosecuted under the fast-track program. The district court did
not abuse its discretion in imposing Varela-Cruz’s sentence. See Gall v. United
States, 552 U.S. 38, 51 (2007). The disparity between Varela-Cruz’s sentence and
the sentences imposed under the fast-track program is not unwarranted and,
therefore, does not violate 18 U.S.C. § 3553(a)(6). See United States v. Marcial-
Santiago, 447 F.3d 715, 718-19 (9th Cir. 2006). Moreover, the sentence at the low
end of the Guidelines range is substantively reasonable in light of the section
3553(a) sentencing factors and the totality of the circumstances, including Varela-
Cruz’s extensive criminal and immigration history. See Gall, 552 U.S. at 51;
United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (the weight
to be given to the various factors in a particular case is left to the discretion of the
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district court).
Varela-Cruz next contends that the case should be remanded to conform the
written judgment to the oral pronouncement of supervised release condition
number 10. The government agrees that there is a clerical mistake in the judgment.
Because the oral pronouncement of the sentence controls when there is a conflict
between the oral pronouncement and the written judgment, we remand for the
district court to conform the judgment with the oral pronouncement of that
condition. See United States v. Allen, 157 F.3d 661, 668 (9th Cir. 1998).
AFFIRMED; REMANDED to correct the judgment.
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