United States v. Julio Torres-Martinez

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 18 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50273 Plaintiff-Appellee, D.C. No. 3:17-cr-00883-LAB v. MEMORANDUM* JULIO CESAR TORRES-MARTINEZ, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted May 15, 2018** Before: SILVERMAN, BEA, and WATFORD, Circuit Judges. Julio Cesar Torres-Martinez appeals from the district court’s judgment and challenges the 16-month sentence imposed following his guilty-plea conviction for being a removed alien found in the United States, in violation of 8 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). For the first time on appeal, Torres-Martinez argues that the government breached the terms of the parties’ plea agreement by failing to recommend a sentence in the “middle-range” of the Guidelines. The government argues that Torres-Martinez waived this claim by failing to raise it in the district court. We decline to decide whether Torres-Martinez waived his breach claim because, even if merely forfeited, Torres-Martinez cannot show plain error. See United States v. Whitney, 673 F.3d 965, 970 (9th Cir. 2012). The government recommended a sentence of ten months, which was in the “middle range” of the parties’ Guidelines calculation, as Torres-Martinez’s sentencing memorandum implicitly acknowledged. Moreover, even treating the ten month recommendation as a breach, it did not affect Torres-Martinez’s substantial rights because the record makes clear that there is no reasonable probability that the court would have imposed a different sentence absent the breach. See United States v. Gonzalez- Aguilar, 718 F.3d 1185, 1187 (9th Cir. 2013). Torres-Martinez next contends that the district court procedurally erred when it denied the parties’ joint request for a two-level departure under U.S.S.G. § 5K1.3, and imposed a substantively unreasonable sentence. We do not review the procedural correctness of a district court’s departure decision; rather, we review the substantive reasonableness of the ultimate sentence under an abuse of discretion standard. See United States v. Rosales-Gonzales, 801 F.3d 1177, 1180 2 17-50273 (9th Cir. 2015). The court did not abuse its discretion. It properly considered Torres-Martinez’s immigration history, including his three prior illegal reentry offenses. See id. at 1184. The 16-month sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007). AFFRIMED. 3 17-50273 17-50273 Court of Appeals for the Ninth Circuit ca9 9th Cir. United States v. Julio Torres-Martinez 18 May 2018 Criminal Unpublished 502eec11470b5da80ba8da9bd51dbd4f2ce8d615

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