United States v. Manuel Gomez-Gutierrez

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 24 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-50228

Plaintiff - Appellee, D.C. No. 3:12-cr-02332-LAB

v.
MEMORANDUM*
MANUEL GOMEZ-GUTIERREZ,

Defendant - Appellant.

Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding

Submitted February 17, 2015**

Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.

Manuel Gomez-Gutierrez appeals from the district court’s judgment and

challenges the 24-month custodial sentence and 12-month term of supervised

release imposed upon revocation of supervised release. 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).
 Gomez-Gutierrez contends that the district court procedurally erred by

(1) relying on his “express” breach of the court’s trust and impermissible sentencing

factors, and (2) failing to explain adequately the upward variance or why a new term

of supervised release was warranted in light of U.S.S.G. § 5D1.1(c). These claims

fail. The record reflects that the court considered the 18 U.S.C. § 3583(e) factors

and sufficiently explained its reasons for imposing the above-Guidelines sentence.

See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc). Further,

the record reflects that the court adequately considered U.S.S.G. § 5D1.1(c) and

explained why it believed that a supervised release term would provide an added

measure of deterrence. See U.S.S.G. § 5D1.1(c) cmt. n.5; Kimbrough v. United

States, 552 U.S. 85, 108-10 (2007).

Gomez-Gutierrez next contends that the sentence is substantively

unreasonable in light of the alleged procedural errors and because the district court

illogically relied on deterrence. The sentence is substantively reasonable in light of

the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances,

including Gomez-Gutierrez’s criminal and immigration history. See Gall v. United

States, 552 U.S. 38, 51 (2007).

AFFIRMED.

2 14-50228