NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 17 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50071 Plaintiff-Appellee, D.C. No. 3:18-cr-04962-LAB-1 v. FRANCISCO ALFREDO PALACIOS- MEMORANDUM* GUERRERO, AKA Alfredo Palacios- Guerrero, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, Chief District Judge, Presiding Submitted December 10, 2020** Pasadena, California Before: GOULD and R. NELSON, Circuit Judges, and COGAN,*** District Judge. Defendant-Appellant Francisco Palacios-Guerrero appeals from the district * 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). *** The Honorable Brian M. Cogan, United States District Judge for the Eastern District of New York, sitting by designation. court’s judgment and challenges the substantive reasonableness of his 60-month sentence and the conditions of supervised release imposed after his guilty-plea conviction for attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, vacate in part, and remand with instructions. Before sentencing, the Government agreed to recommend a two-level fast- track departure under the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003), despite the fact that Appellant had previously received such fast-track reductions three times. At the sentencing hearing, the district court expressed concern with Appellant’s extensive criminal and immigration history and engaged in a lengthy discussion with the Government about why they were offering another fast-track departure to Appellant. The court declined to grant another fast-track departure and instead calculated a Guidelines range of 37 to 46 months based on an adjusted offense level of 15 and a criminal history category of V. Concluding that the upper end of the range would be insufficient to deter Appellant and promote respect for the law, the court varied upward from the Guidelines and imposed a 60- month sentence and three years of supervised release. The court orally announced two conditions of supervised release: Appellant could not reenter the United States or violate any United States laws. The written judgment included those two conditions as well as thirteen additional conditions classified as “mandatory” or 2 “standard.” Appellant contends that his 60-month sentence is substantively unreasonable because the district court impermissibly considered perceived disparities in how the Government recommends fast-track departures. We disagree. We review the substantive reasonableness of a sentence for abuse of discretion. United States v. Autery, 555 F.3d 864, 871 (9th Cir. 2009). Sentences are reasonable if they are based on “rational and meaningful consideration of the factors enumerated in 18 U.S.C. § 3553(a).” United States v. Ressam, 679 F.3d 1069, 1089 (9th Cir. 2012). While one of those factors is “the need to avoid unwarranted sentence disparities” among similarly-situated defendants, 18 U.S.C. § 3553(a)(6), a district court may not take fast-track disparities ...
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