United States v. Jose Ortiz-Varela

FILED
NOT FOR PUBLICATION FEB 23 2012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. 11-50280

Plaintiff - Appellee, D.C. No. 3:11-cr-00013-LAB

v.
MEMORANDUM *
JOSE ORTIZ-VARELA,

Defendant - Appellant.

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

Submitted February 21, 2012 **

Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

Jose Ortiz-Varela appeals from the 46-month sentence imposed following

his guilty-plea conviction for being a deported alien found in the United States, in

violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and

*
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).
we affirm.

Ortiz-Varela contends the district court procedurally erred by placing

excessive weight on the need for deterrence, to the exclusion of the other 18 U.S.C.

§ 3553(a) sentencing factors. The record reflects that the district court properly

considered the section 3553(a) sentencing factors, provided ample explanation for

the sentence, and did not otherwise procedurally err. See United States v. Carty,

520 F.3d 984, 992-93 (9th Cir. 2008) (en banc); United States v. Gutierrez-

Sanchez, 587 F.3d 904, 908 (9th Cir. 2009) (“The weight to be given the [section

3553(a)] factors in a particular case is for the discretion of the district court.”).

Ortiz-Varela also contends the above-Guidelines sentence is substantively

unreasonable because: (1) it is longer than necessary to promote deterrence; (2) he

has effectively eliminated his primary impetus for reentry, and (3) his prior

sentences were “effectively illegal.” In light of the totality of the circumstances

and the 18 U.S.C. § 3553(a) sentencing factors, the sentence is substantively

reasonable. See United States v. Higuera-Llamos, 574 F.3d 1206, 1211-12 (9th

Cir. 2009) (substantively reasonable sentence where appellant’s previous 18-month

sentence for illegal reentry was insufficient deterrence as “he committed the same

crime only a month after his previous release and subsequent deportation.”).

AFFIRMED.

2 11-50280