NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 19 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50076
Plaintiff-Appellee, D.C. No. 2:12-cr-00569-MMM
v.
MEMORANDUM*
JOSE ROBERTO HERNANDEZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
Jose Roberto Hernandez appeals from the district court’s judgment and
challenges the 120-month sentence and 5-year term of supervised release imposed
following his guilty-plea conviction for conspiracy to distribute cocaine and
methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846. We
*
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).
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hernandez contends that the district court procedurally erred by comparing
him to a codefendant who, unlike Hernandez, was subject to a statutory mandatory
minimum sentence, and by relying on unsupported facts in conducting that
comparison. The district court properly considered the sentence imposed on
Hernandez’s codefendant, taking into account the sentence the codefendant would
have received in the absence of the mandatory minimum. See 18 U.S.C.
§ 3553(a)(6). Moreover, in light of the undisputed facts contained in the
presentence report, the district court’s findings regarding Hernandez’s role in the
drug conspiracy were not clearly erroneous. See United States v. Ameline, 409
F.3d 1073, 1085 (9th Cir. 2005) (en banc) (court may rely on undisputed facts in
presentence report at sentencing).
Hernandez also contends that the district court erred by failing to explain its
imposition of a five-year term of supervised release. We review for plain error, see
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and
conclude that there is none. The record reflects that the district court considered
the 18 U.S.C. § 3553(a) sentencing factors when selecting the sentence, and the
court’s reasons for imposing the supervised release term are apparent from the
record. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc).
AFFIRMED.
2 15-50076