United States v. Felipe Gonzalez-Alvarez

FILED
NOT FOR PUBLICATION NOV 09 2012

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. 11-50508

Plaintiff-Appellee, D.C. No. 3:11-CR-3677-LAB

v. MEMORANDUM *

FELIPE GONZALEZ-ALVAREZ,

Defendant-Appellant.

On Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding

**
Submitted November 6, 2012
Pasadena, California

Before: GOODWIN and O’SCANNLAIN, Circuit Judges, and ZOUHARY, District
Judge.***

* 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).

*** The Honorable Jack Zouhary, District Judge for the U.S. District Court
for Northern Ohio, sitting by designation.
Defendant-Appellant Felipe Gonzalez-Alvarez (“Gonzalez-Alvarez”), a native

and citizen of Mexico, pled guilty to a one-count information charging him with being

present in the United States unlawfully after removal, in violation of 8 U.S.C. § 1326.

The sentencing judge calculated his total offense level to be 9 with a criminal history

category VI, resulting in a Sentencing Guidelines range of 21 to 27 months of

imprisonment. Gonzalez-Alvarez challenges his above-Guidelines sentence of 60

months incarceration followed by 3 years supervised release. We have jurisdiction

under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and now affirm.

1. Gonzalez-Alvarez’s sentence of 60 months incarceration is less than the

statutory maximum of 240 months, but 33 months above the maximum recommended

by the federal Sentencing Guidelines. The Guidelines, however, are only advisory.

Gall v. United States, 552 U.S. 38, 45–46 (2007). As directed by 18 U.S.C. § 3553(a),

the sentencing judge weighed several factors, including the Guidelines, Gonzalez-

Alvarez’s prolific criminal history, which features nearly fifty separate convictions

over the span of two decades; each committed while in the country illegally, and seven

prior deportations. All in all, the judge felt Gonzalez-Alvarez’s “flabbergasting

record” warranted a significant increase from his last Section 1326 offense, as his

prior sentence of 27 months clearly did not deter him. The judge adequately explained

and did not abuse his discretion by imposing an above-Guidelines sentence.

2
2. As Gonzalez-Alvarez’s attorney told the judge at sentencing, the

Guidelines recommend against imposing supervised release on deportable aliens under

“ordinar[y]” circumstances. U.S.S.G. § 5D1.1(c). But Gonzalez-Alvarez’s

circumstances are not “ordinary.” Application note 5 to Section 5D1.1 specifically

instructs that supervised release is appropriate for deportable aliens when “it would

provide an added measure of deterrence and protection.” The sentencing judge gave

a specific explanation that supervised release would provide an added measure of

deterrence and protection based on the facts of this case. See United States v.

Dominguez-Alvarado, ---F.3d---, No. 11-41304, 2012 WL 3985136, *3 (5th Cir. Sept.

12, 2012). The judge found supervised release:

necessary because I am trying my best to impose a sentence that will
deter [Gonzalez-Alvarez] from coming back, but I have no great
confidence that it will, and I think supervised release is necessary as an
additional consequence to add to the deterrence.

Contrary to Gonzalez-Alvarez’s assertion, this finding was not a Kimbrough-

style rejection of a Guidelines sentencing policy; rather, it was consistent with Section

5D1.1 and its accompanying commentary. See United States v. Henderson, 649 F.3d

955, 964 (9th Cir. 2011). Accordingly, we find no error in the court’s decision to

impose 3 years of supervised release.

AFFIRMED.