United States v. Jose Torres-Bobadilla

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                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 02 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 10-50356

              Plaintiff - Appellee,              D.C. No. 3:09-cr-02700-JLS-1

  v.
                                                 MEMORANDUM*
JOSE ANGEL TORRES-BOBADILLA,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Southern District of California
                   Janis L. Sammartino, District Judge, Presiding

                           Submitted August 31, 2011**
                              Pasadena, California

Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.



       Appellant Jose Torres-Bobadilla argues that his indictment was insufficient.

Under Federal Rule of Criminal Procedure 7(c)(1), an indictment must be a “plain,


        *
             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).
concise and definite written statement of the essential facts constituting the offense

charged.” A legally sufficient indictment is one that “state[s] the elements of the

offense charged with sufficient clarity to apprise a defendant of the charge against

which he must defend and to enable him to plead double jeopardy.” United States

v. Hinton, 222 F.3d 664, 672 (9th Cir. 2000). When “read in its entirety and

construed in accord with common sense,” United States v. Alber, 56 F.3d 1106,

1111 (9th Cir. 1995), the indictment in this case put the appellant on notice of the

offense charged and was not fairly interpretable in the disjunctive. Accordingly,

the indictment was legally sufficient.

      The appellant also argues that his seventy-month prison sentence was

substantively unreasonable. The district court did not abuse its discretion when it

imposed a within-Guidelines sentence that was amply justified by the factors listed

at 18 U.S.C. § 3553(a) in light of the appellant’s criminal record and recent

frequent reentries. See United States v. Carty, 520 F.3d 984, 994 (9th Cir. 2008)

(en banc). All of the appellant’s contentions to the contrary are without merit.

      AFFIRMED.




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