United States v. Jose Cuevas-Estrada

FILED NOT FOR PUBLICATION APR 22 2013 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 11-10628 Plaintiff - Appellee, D.C. No. 5:10-cr-00858-DLJ v. MEMORANDUM * JOSE CUEVAS-ESTRADA, Defendant - Appellant. Appeal from the United States District Court for the Northern District of California D. Lowell Jensen, District Judge, Presiding Submitted April 16, 2013 ** Before: CANBY, IKUTA, and WATFORD, Circuit Judges. Jose Cuevas-Estrada appeals from the district court’s judgment and challenges the 57-month sentence imposed following his guilty-plea conviction for illegal reentry following deportation, in violation of 8 U.S.C. § 1326. We have * 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). jurisdiction under 28 U.S.C. § 1291, and we affirm. Cuevas-Estrada contends that the district court abused its discretion by denying his request for a cultural assimilation departure on the basis of a clearly erroneous fact, and by denying his request for a downward departure in his criminal history category. This court does not review the denial of a departure; rather, our review is limited to determining whether the court imposed a substantively reasonable sentence. See United States v. Vasquez-Cruz, 692 F.3d 1001, 1008 (9th Cir. 2012). The substantive reasonableness of a sentence is reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). Contrary to Cuevas-Estrada’s contention, the district court did not abuse its discretion in imposing his sentence. The court varied downward from the advisory Sentencing Guidelines range because it believed that the 16-level enhancement for Cuevas-Estrada’s prior offense was excessive. The sentence is substantively reasonable in light of the totality of the circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a), including the need to deter and to protect the public. See Gall, 552 U.S. at 51. AFFIRMED. 2 11-10628