FILED
NOT FOR PUBLICATION JUL 23 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10482
Plaintiff - Appellee, D.C. No. 2:12-cr-01201-JAT-1
v.
MEMORANDUM*
JOSE CABRERA,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted September 12, 2013**
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Jose Cabrera appeals from the district court’s judgment and challenges the
37-month sentence imposed following his guilty-plea conviction for violating 8
U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
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).
Cabrera contends that the district court did not adequately explain the
reasons for the sentence. He contends that the district court failed to explain the
denials of his request to impose a lower sentence on the basis that he had been
rehabilitated while serving a sentence in state prison and his request that the court
sentence him using the range set forth in a rejected fast-track plea offer. The
district court adequately explained the reasons for the sentence. See United States
v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). The court addressed
Cabrera’s argument related to his state sentence, and the district court was not
required to address Cabrera’s frivolous argument that he should receive a sentence
based on a rejected fast-track plea agreement. See Carty, 520 F.3d at 992-93; cf.
United States v. Gonzalez-Zotelo, 556 F.3d 736, 739-41 (9th Cir. 2009) (holding
that district court plainly erred when it decided to impose a sentence comparable
to a fast-track sentence where the defendant did not enter into a fast-track plea
agreement).
Cabrera also contends that the sentence is substantively unreasonable. We
review for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007).
The district court did not abuse its discretion. The sentence is substantively
reasonable in light of the totality of the circumstances and the 18 U.S.C. § 3553(a)
factors, including not only Cabrera’s state prison sentence and efforts towards
2 12-10482
rehabilitation, but also his rejection of the fast-track plea agreement and his
criminal history, which is entirely distinct from the offense at issue here. See
Gall, 552 U.S. at 51; cf. United States v. Defterios, 343 F.3d 1020, 1023-24 (9th
Cir. 2003) (recognizing that delay in indictment may sometimes be a basis for a
sentencing departure, but holding that district court erred when it decreased
sentence based on a delay in an indictment where the offenses were separate
crimes distinct in time, place, and victims).
AFFIRMED.
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