NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50357
Plaintiff-Appellee, D.C. No. 3:17-cr-01262-LAB
v.
MEMORANDUM*
FERNANDO OROZCO-URANGA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted June 12, 2018**
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Fernando Orozco-Uranga appeals from the district court’s judgment and
challenges the 41-month sentence imposed following his guilty-plea conviction for
attempted reentry of a removed alien, 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).
Orozco-Uranga contends that the district court improperly double counted
when it imposed a four-level enhancement for a prior illegal reentry offense and
then used that offense to justify a lesser fast-track departure than that
recommended by the parties. The court did not abuse its discretion. See United
States v. Christensen, 732 F.3d 1094, 1100 (9th Cir. 2013). First, the four-level
enhancement reflected only one of Orozco-Uranga’s four prior immigration
offenses, while the district court denied the fast-track departure on the basis of
Orozco-Uranga’s immigration history as a whole. Second, double counting is
impermissible only “when one part of the Guidelines is applied to increase a
defendant’s punishment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guidelines.” United States v.
Stoterau, 524 F.3d 988, 1001 (9th Cir. 2008) (internal quotations omitted). Here,
the district court correctly applied a four-level enhancement based on Orozco-
Uranga’s prior illegal reentry conviction, see U.S.S.G. § 2L1.2(b)(1)(A) (2016),
and then decreased Orozco-Uranga’s base offense level under U.S.S.G. § 5K3.1.
The court did not double count or otherwise err by considering Orozco-Uranga’s
prior immigration offense in granting only a one-level reduction. See United States
v. Rosales-Gonzales, 801 F.3d 1177, 1184 (9th Cir. 2015) (under 18 U.S.C.
2 17-50357
§ 3553(a), district court may consider defendant’s immigration history to
determine whether to grant fast-track reduction and the proper sentence). Nor does
the record support Orozco-Uranga’s assertion that the court misapplied the
Guidelines calculation to create the sentencing range it preferred. See id. at 1181-
82.
AFFIRMED.
3 17-50357