United States v. Julio Galindo-Martinez

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-30099 Plaintiff-Appellee, D.C. No. 2:17-cr-00019-TSZ v. MEMORANDUM* JULIO GALINDO-MARTINEZ, Defendant-Appellant. Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding Submitted April 11, 2018** Before: SILVERMAN, PAEZ, and OWENS, Circuit Judges. Julio Galindo-Martinez appeals from the district court’s judgment and challenges the 24-month sentence imposed following his guilty-plea conviction for illegal reentry after deportation, in violation of 18 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * 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). Galindo-Martinez contends that his above-Guidelines sentence is substantively unreasonable. He argues that the district court’s upward variance was improper because it was based on his criminal history, which was already reflected in the Guidelines calculation. The district court did not abuse its discretion in imposing Galindo- Martinez’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including Galindo-Martinez’s criminal and immigration history. See Gall, 552 U.S. at 51. Several of Galindo- Martinez’s prior convictions were too old to be counted in his criminal history score under the Guidelines. Furthermore, a district court may vary upward based on factors already incorporated into the Guidelines calculations. See United States v. Christensen, 732 F.3d 1094, 1100-01 (9th Cir. 2013). AFFIRMED. 2 17-30099 17-30099 Court of Appeals for the Ninth Circuit ca9 9th Cir. United States v. Julio Galindo-Martinez 13 April 2018 Criminal Unpublished 8a54b86b4dd84f3f655753b7c40fde1f62984d6f

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