NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50124
Plaintiff-Appellee, D.C. No. 3:20-cr-01116-BEN-1
v.
MEMORANDUM*
ARMANDO HERNANDEZ-GARCIA,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted March 4, 2021
Pasadena, California
Before: TALLMAN and CALLAHAN, Circuit Judges, and CHRISTENSEN,**
District Judge.
Armando Hernandez-Garcia presents two distinct challenges to the district
court’s imposition of sentence. Specifically, Hernandez-Garcia contends that the
district court: (1) failed to order a presentence investigation or otherwise explain
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Dana L. Christensen, United States District Judge for
the District of Montana, sitting by designation.
on the record why such an investigation was unnecessary; and (2) relied on outside
information without providing it to the parties. Because the parties are familiar
with the facts, they are only recounted where necessary to understand our
conclusions. We have jurisdiction pursuant to 28 U.S.C. § 1291 and, for the
reasons stated below, affirm.
1. Review of Hernandez-Garcia’s first claim is foreclosed by the doctrine of
invited error. This doctrine “prevents a defendant from complaining of an error
that was his own fault” by rendering it “waived and therefore unreviewable.”
United States v. Myers, 804 F.3d 1246, 1254 (9th Cir. 2015) (internal citations
omitted). To apply, the defendant must: (1) invite the error; and (2) relinquish a
known right. Id. Here, both requirements are satisfied.
Without a doubt, Hernandez-Garcia enjoys the right to have a presentence
investigation prepared prior to sentencing. Fed. R. Crim. P. 32(c)(1)(A). But he
was specifically advised of this right and relinquished it to obtain an expedited
sentencing. Accordingly, this “issue vanishes” because “the Rule 32 error, if any,
was thus invited.” United States v. Montecalvo, 545 F.2d 684, 685 (9th Cir. 1976).
2. Hernandez-Garcia’s second assignment of error also fails. At sentencing,
the district court must “allow the parties’ attorneys to comment on . . . matters
relating to an appropriate sentence.” Fed. R. Crim. P. 32(i)(1)(C). This requires
“disclosure of all relevant factual information to the defendant for adversarial
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testing,” unless such information is merely used to establish “well-known,
common sense proposition[s].” United States v. Warr, 530 F.3d 1152, 1162–63
(9th Cir. 2008) (internal citations omitted).
Accordingly, a district court violates Rule 32 when it relies on undisclosed
information in imposing sentence without affording the defendant an “opportunity
to respond before sentence” is imposed. United States v. Gray, 905 F.3d 1145,
1148 (9th Cir. 2018). A Rule 32 violation, however, cannot form the basis of
appellate relief if it was harmless. Peguero v. United States, 526 U.S. 23, 29
(1999) (citing Fed. R. Crim. P. 52(a)). In other words, under Rule 52(a), this Court
may only afford relief if the district court’s alleged Rule 32 error prejudiced
Hernandez-Garcia. United States v. Olano, 507 U.S. 725, 734 (1993); United
States v. Minore, 292 F.3d 1109, 1119 (9th Cir. 2002).
Hernandez-Garcia’s Rule 32(i)(1)(C) challenge is three-fold, asserting that
the district court improperly relied on information related to: (1) past cases of
illegal re-entry by other aliens; (2) COVID-19; and (3) recidivism. As to the first
two categories, the Court need not determine whether the district court’s ostensible
reliance on this outside information violated Rule 32, because any error was
harmless.
The district court carefully examined the factors found at 18 U.S.C.
§ 3553(a) and was clear that the basis for its sentence was Hernandez-Garcia’s
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criminal history. Consequently, even if the district court considered these
undisclosed outside materials, there was no prejudice because the record reveals
the sentence imposed would have been the same. In short, any error was harmless.
As to the final category, we are not convinced any Rule 32 error occurred in
this instance. To the extent the district court’s concerns about Hernandez-Garcia’s
criminal history were driven by undisclosed information regarding recidivism,
such information is precisely the sort of “[g]arden variety considerations . . . [that]
should not generally comes as a surprise to trial lawyers who have prepared for
sentencing.” Irizarry v. United States, 553 U.S. 708, 716 (2008) (internal citations
omitted). In other words, the district court’s supposed reliance on undisclosed
outside studies regarding recidivism revealed nothing more than “the well-known,
common sense proposition that” prior criminality is a relevant predictor of future
criminality. Warr, 530 F.3d at 1163. This is insufficient to warrant reversal.
AFFIRMED.
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