FILED
NOT FOR PUBLICATION DEC 20 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50511
Plaintiff-Appellee, D.C. No. 3:15-cr-01835-DMS
v.
MEMORANDUM*
OSCAR JAVIER NOLASCO-TELLEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Oscar Javier Nolasco-Tellez appeals from the district court’s judgment and
challenges the 36-month sentence imposed following his guilty-plea conviction for
being a removed alien found in the United States, in violation of 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 Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Nolasco-Tellez contends that the district court procedurally erred by failing
to consider U.S.S.G. § 4A1.3. We review for plain error, see United States v.
Valencia-Barragan, 608 F.3d 1103, 1108 & n.3 (9th Cir. 2010), and find none.
The district court did not depart upward on the basis that Nolasco-Tellez’s criminal
history category was inadequate. Accordingly, section 4A1.3 was not a “pertinent
policy statement” that the district court was required to consider under 18 U.S.C.
§ 3553(a)(5).
Nolasco-Tellez next contends that the district court erred under Federal Rule
of Criminal Procedure 32(h) by imposing an above-Guidelines sentence without
providing prior notice. Contrary to Nolasco-Tellez’s contention, the record reflects
that the district court imposed an upward variance based on the 18 U.S.C.
§ 3553(a) factors. Accordingly, the district court was not required to provide
notice under Rule 32(h). See United States v. Moschella, 727 F.3d 888, 893 (9th
Cir. 2013) (“A district court is not required under Rule 32(h) to give advance
notice before imposing a sentence outside of the advisory guideline range if the
sentence is the result of a variance.”).
Finally, Nolasco-Tellez contends that his sentence is substantively
unreasonable. The district court did not abuse its discretion in imposing
Nolasco-Tellez’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007).
2 15-50511
The above-Guidelines sentence is substantively reasonable in light of the section
3553(a) sentencing factors and the totality of the circumstances, including
Nolasco-Tellez’s criminal and immigration history as well as his failure to be
deterred by prior sentences. See United States v. Burgos-Ortega, 777 F.3d 1047,
1056–57 (9th Cir. 2015).
AFFIRMED.
3 15-50511