FILED
NOT FOR PUBLICATION OCT 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 13-10666
Plaintiff - Appellee, D.C. No. 2:08-cr-00417-MCE-1
v.
MEMORANDUM*
FERNANDO MURGUIA-OCHOA, a.k.a.
Fernando Cruz Arreola,
Defendant - Appellant.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Submitted August 18, 2014**
Before: HUG, FARRIS, and CANBY, Circuit Judges.
Fernando Murguia-Ochoa appeals from the district court’s judgment and
challenges the 292-month sentence imposed following his guilty-plea conviction
for possession with intent to distribute at least 50 grams of methamphetamine, in
*
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).
violation of 21 U.S.C. § 841(a)(1), and conspiracy to possess with intent to
distribute at least 50 grams of methamphetamine, in violation of 21 U.S.C. § 846.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Murguia-Ochoa contends that the district court procedurally erred at
sentencing by failing to exercise its discretion and instead implementing a
categorical rule precluding consideration of post-sentencing rehabilitation in any
sentencing decision. Because Murguia-Ochoa did not object on these grounds in
the district court, we review for plain error. See United States v. Dallman, 533
F.3d 755, 761-62 (9th Cir. 2008). It was not plain error affecting substantial rights
for the district court to conclude that defendants like Murguia-Ochoa do not show
rehabilitation by refraining from criminal activity while their imprisonment
prevents them from committing the types of crimes they have committed in the
past. See Gall v. United States, 552 U.S. 38, 49-50 (2007) (recognizing that the
Sentencing Guidelines are the initial starting point and benchmark at sentencing,
but that a sentencing judge “must make an individualized assessment based on the
facts presented”); cf. United States v. Miller, 722 F.2d 562, 565 (9th Cir. 1983)
(“When a court establishes a broad policy based on events unrelated to the
individual case before it, no discretion has been exercised.”) (emphasis
added).
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Murguia-Ochoa also contends that the 292-month sentence, at the bottom of
the applicable Sentencing Guidelines range, is substantively unreasonable because
his career offender predicate offenses are stale and because he has been
rehabilitated since his original sentencing. The sentence is not substantively
unreasonable in light of all the 18 U.S.C. § 3553(a) factors and the totality of the
circumstances, including Murguia-Ochoa’s repeated criminal history, the
extremely large quantity of methamphetamine involved in the offense, and any
evidence of his post-sentencing conduct. See Gall v. United States, 552 U.S. 38,
51 (2007); United States v. Valencia–Barragan, 608 F.3d 1103, 1109 (9th
Cir.2010) (distinguishing Amezcua-Vasquez based on the recency of the
appellant’s criminal history and the greater need to protect the public); cf. Pepper
v. United States, 131 S. Ct. 1229 (2011).
AFFIRMED.
3