FILED
NOT FOR PUBLICATION OCT 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-30003
Plaintiff - Appellee, D.C. No. 1:10-cr-30040-PA
v.
MEMORANDUM *
RAUL HERNANDEZ-FRANCO,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted October 25, 2011 **
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
Raul Hernandez-Franco appeals from the 57-month sentence imposed
following his guilty-plea conviction for illegal reentry, in violation of 8 U.S.C.
§ 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hernandez-Franco contends the district court procedurally erred by failing
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
to address his arguments relating to the intra-district disparity created by the
government’s refusal to offer him a “fast track” plea agreement. The record
reflects that the district court listened to and considered Hernandez-Franco’s
arguments in this regard, but found the circumstances insufficient to warrant a
sentence lower than the one imposed. See United States v. Carty, 520 F.3d 984,
995-96 (9th Cir. 2008) (en banc); see also United States v. Banuelos-Rodriguez,
215 F.3d 969, 976 (9th Cir. 2000) (en banc) (“Courts generally have no place
interfering with a prosecutor’s discretion regarding whom to prosecute, what
charges to file, and whether to engage in plea negotiations.”).
Hernandez-Franco also contends his sentence is substantively unreasonable
because it is based on a 16-level enhancement under U.S.S.G. § 2L1.2(b) which
lacks any empirical basis and triple counts his criminal history. The sentence is
substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and
the totality of the circumstances. See Carty, 520 F.3d at 993.
AFFIRMED.
2 11-30003