NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 19-50059 Plaintiff-Appellee, D.C. No. 3:18-cr-04731-LAB-1 v. JOSE ZAMUDIO-SILVA, MEMORANDUM* Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted December 13, 2019** Pasadena, California Before: KELLY,*** PAEZ, and BADE, Circuit Judges. Jose Zamudio-Silva appeals his sentence of twelve months’ imprisonment followed by three years’ supervised release for illegal reentry following removal in * 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 Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. violation of 8 U.S.C. § 1326(a). Zamudio-Silva argues that his within-Guidelines sentence is procedurally and substantively unreasonable because the district court considered the transcript from Zamudio-Silva’s previous sentencing hearing and denied a “fast track” departure under United States Sentencing Guidelines (“USSG”) § 5K3.1.1 We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We review sentencing decisions for abuse of discretion, United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc), and we affirm. I. In reviewing sentencing decisions, we first consider whether the district court committed any “significant procedural error,” including, “failing to consider the § 3553(a) factors . . . or failing to adequately explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). If the sentence is procedurally correct, we then consider “the substantive reasonableness of the sentence” under an abuse-of-discretion standard. Carty, 520 F.3d at 993. Because Zamudio-Silva did not assert any procedural objections in the district court, we review his claims of procedural error only for plain error. See United States v. Valencia-Barragan, 608 1 Zamudio-Silva was sentenced in two matters at the same hearing on February 19, 2019. In the first case, No. 18-CR-4731-LAB, which is the subject of this appeal, he pleaded guilty to a being a removed alien in the United States, in violation of 8 U.S.C. § 1326. In the second case, No. 18-CR-3446-LAB, the court took judicial notice of Zamudio-Silva’s guilty plea in the first case and on that basis found that he violated probation. Zamudio-Silva does not appeal his sentence for the probation violation. 2 F.3d 1103, 1108 (9th Cir. 2010). This court does not review the district court’s denial of a “fast track” departure under USSG § 5K for procedural error. See United States v. Rosales- Gonzales, 801 F.3d 1177, 1180 (9th Cir. 2015). However, we may consider the district court’s denial of the “fast track” departure in our analysis of the substantive reasonableness of the sentence. See id. at 1180, 1182. Although we do not presume that a within-Guidelines sentence is ...
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