FILED
NOT FOR PUBLICATION MAY 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-50345
Plaintiff - Appellee, D.C. No. 3:13-cr-01205-LAB
v.
MEMORANDUM*
BALDEMAR HERNANDEZ-ALVAREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted May 13, 2014**
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Baldemar Hernandez-Alvarez appeals from the district court’s judgment and
challenges the 119-month sentence imposed following his guilty-plea conviction
for attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have
*
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).
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hernandez-Alvarez contends that the district court erred by failing to use the
Guidelines range as the starting point in its sentencing analysis. We review for
plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010), and find none. The district court properly used the Guidelines range as the
starting point in the sentencing process and kept the range in mind while weighing
the 18 U.S.C. § 3553(a) factors. See United States v. Autery, 555 F.3d 864, 872
(9th Cir. 2009).
Hernandez-Alvarez also contends the sentence is substantively unreasonable
because it resulted from the district court’s abuse of discretion in denying a fast-
track departure and because it is greater than necessary to accomplish the
sentencing purposes set forth in section 3553(a). We do not review the district
court’s discretionary decision to decline a fast-track departure except as part of our
review of the substantive reasonableness of the sentence. See United States v.
Ellis, 641 F.3d 411, 421 (9th Cir. 2011). The above-Guidelines sentence is
substantively reasonable in light of the section 3553(a) sentencing factors and the
totality of the circumstances, including Hernandez-Alvarez’s repeated immigration
2 13-50345
violations and his failure to be deterred by prior sentences. See Gall v. United
States, 552 U.S. 38, 51 (2007). We find no abuse of discretion. See id.
AFFIRMED.
3 13-50345