FILED
NOT FOR PUBLICATION NOV 25 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 13-10599
13-10602
Plaintiff - Appellee,
D.C. Nos. 2:12-cr-00389-GMN
v. 2:12-cr-00447-GMN
JOSE SANCHEZ-OSUNA, a.k.a. Jesus
Palacios-Burgos; JORGE JAVIER MEMORANDUM*
RIVERA LOPEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
In these consolidated appeals, Jose Sanchez-Osuna, a.k.a. Jorge Javier
Rivera Lopez, appeals from the district court’s judgments and challenges the 51-
month sentence imposed following his guilty-plea conviction for being a deported
*
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).
alien found unlawfully in the United States, in violation of 8 U.S.C. § 1326; and
the 12-month-and-one-day consecutive sentence imposed upon revocation of
supervised release. We have jurisdiction under 28 U.S.C. § 1291. We dismiss
Appeal No. 13-10599, and we affirm in Appeal No. 13-10602.
The government contends that these appeals should be dismissed based on
the appeal waiver in the parties’ plea agreement. We review de novo whether an
appellant has waived his right to appeal. See United States v. Joyce, 357 F.3d 921,
922 (9th Cir. 2004). We dismiss Appeal No. 13-10599 because the waiver covers
any appeal of Sanchez-Osuna’s within-Guidelines sentence. We decline to dismiss
Sanchez-Osuna’s challenge to his above-Guidelines revocation sentence, however,
because it is not unambiguously encompassed by the language of the waiver. See
id. at 922-23.
In Appeal No. 13-10602, Sanchez-Osuna first contends that the district court
procedurally erred by failing to consider the 18 U.S.C. § 3583(e) sentencing factors
and by failing to explain its reasons for imposing a consecutive revocation
sentence. We review for plain error, see United States v. Valencia-Barragan, 608
F.3d 1103, 1108 (9th Cir. 2010), and find none. The record reflects that the district
court adequately considered the section 3583(e) sentencing factors. See United
States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc) (“The district court
2 13-10599 & 13-10602
need not tick off each of the [sentencing] factors to show that it has considered
them.”). Moreover, the reasons for imposing the sentence, including the
seriousness of Sanchez-Osuna’s breach of trust and the need to deter, are apparent
from the record. See id. (adequate explanation may be inferred from the record as
a whole).
Sanchez-Osuna also contends that the consecutive revocation sentence is
substantively unreasonable. The district court did not abuse its discretion in
imposing Sanchez-Osuna’s sentence. See Gall v. United States, 552 U.S. 38, 51
(2007). The sentence is substantively reasonable in light of the section 3583(e)
sentencing factors and the totality of the circumstances, including Sanchez-Osuna’s
criminal and immigration history. See U.S.S.G. § 7B1.3(f); Gall, 552 U.S. at 51.
Appeal No. 13-10599 DISMISSED; Appeal No. 13-10602 AFFIRMED.
3 13-10599 & 13-10602