United States v. Carlos Ibarra


NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 20-50217 Plaintiff-Appellee, D.C. No. 3:19-cr-04800-LAB-1 v. CARLOS IBARRA, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Argued and Submitted December 8, 2021 Pasadena, California Before: KELLY,** M. SMITH, and FORREST, Circuit Judges. Defendant-Appellant Carlos Ibarra pled guilty to one count of importation of methamphetamine, 21 U.S.C. §§ 952, 960. The district court sentenced Mr. Ibarra to 90 months of imprisonment and five years of supervised release. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. DISCUSSION The parties are familiar with the facts, so we need not restate them here. On appeal, Mr. Ibarra contends that the district court made three errors in sentencing. First, by categorically refusing to consider drug addiction as mitigating in drug importation cases. Second, by restricting Mr. Ibarra’s presence in Mexico without making an individualized finding that it was necessary. Third, by including terms in the written judgment that were not announced at sentencing. The government challenges the first issue and concedes that remand would be appropriate on the second and third issues. A. The Sentence The parties disagree on the standard of review, with Mr. Ibarra advocating for abuse of discretion and the government for plain error. Regardless, “only a procedurally erroneous or substantively unreasonable sentence will be set aside.” United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008). A district court may not refuse to “announce its calculated Guidelines range to the parties” or “consider expressly the § 3553(a) factors.” United States v. Waknine, 543 F.3d 546, 554 (9th Cir. 2008). However, “[t]he district court need not tick off each of the § 3553(a) factors to show that it has considered them.” Carty, 520 F.3d at 992. The district court is simply required to “adequately explain the chosen sentence to allow for meaningful appellate review.” Gall v. United States, 552 U.S. 38, 50 (2007). 2 Mr. Ibarra does not argue that his sentence was substantively unreasonable. The district court also did not commit a procedural error because, contrary to Mr. Ibarra’s assertions, it did not categorically refuse to consider his drug addiction. Mr. Ibarra relies on the district court’s statement that “[i]t would be a very perverse mitigating factor to say, oh, you’re using methamphetamine and addicted to it so that somehow mitigates the crime of bringing a boatload of methamphetamine into the United States.” However, the court’s statement was made in the context of considering many § 3553(a) factors. While discussing the circumstances of the offense, the district court …

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