NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-50232
Plaintiff-Appellee, D.C. No. 3:17-cr-00471-BEN
v.
MEMORANDUM*
ANTONIO BARRERA-RAMIREZ,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Antonio Barrera-Ramirez appeals from the district court’s judgment and
challenges the 30-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).
Barrera-Ramirez contends that the district court procedurally erred by failing
to calculate the Guidelines range at the outset of the sentencing hearing. Contrary
to Barrera-Ramirez’s contention, we review this claim for plain error. See United
States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The district
court did not plainly err because the record reflects that the court was aware of the
applicable Guidelines range, which it correctly calculated at the end of the
sentencing hearing. Barrera-Ramirez has not shown a reasonable probability that
he would have received a different sentence if the court had calculated the
Guidelines range earlier in the hearing. See United States v. Dallman, 533 F.3d
755, 762 (9th Cir. 2008). Barrera-Ramirez’s contentions that the court did not use
the Guidelines range as a benchmark, and that it manipulated the Guidelines
calculation to produce the sentencing range it preferred, are also without merit.
See United States v. Rosales-Gonzales, 801 F.3d 1177, 1181 (9th Cir. 2015)
(district court’s decision to deny the parties’ request for a fast-track departure did
not constitute manipulation of the Guidelines calculation).
Barrera-Ramirez further contends that the district court erred by relying on
erroneous facts at sentencing. The court did not plainly err. See Valencia-
Barragan, 608 F.3d at 1108. Any misapprehension the court had about the extent
of the fast-track departure granted in Barrera-Ramirez’s 2011 case, or the
2 17-50232
Guidelines range calculated in that case,1 did not affect the court’s sentencing
decision. See Dallman, 533 F.3d at 762. The court based its sentence on Barrera-
Ramirez’s criminal and immigration history, including the 21-month sentence
Barrera-Ramirez received in the 2011 case, and the need to deter. Because the
district court did not depart from the Guidelines range in this case, Barrera-
Ramirez’s argument that the court’s reliance on erroneous facts concerning his
2011 sentencing violated Federal Rule of Criminal Procedure 32(h) also fails. See
Fed. R. Crim. P. 32(h).
Lastly, Barrera-Ramirez contends that the district court abused its discretion
by denying a fast-track departure. Contrary to Barrera-Ramirez’s argument, the
record reflects that the district court properly based its decision on the
individualized facts of his case, including his criminal and immigration history.
See Rosales-Gonzales, 801 F.3d at 1183-84. The district court did not abuse its
discretion in denying a fast-track departure and imposing a 30-month sentence.
See id. at 1184-85.
AFFIRMED.
1
The government’s request that we take judicial notice of the sentencing transcript
from Barrera-Ramirez’s prior case is granted.
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