United States v. Rafael Ponce-Medina

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 20 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 17-50032 Plaintiff-Appellee, D.C. No. 3:16-cr-01988-DMS v. MEMORANDUM* RAFAEL PONCE-MEDINA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Dana M. Sabraw, District Judge, Presiding Submitted November 15, 2017** Before: CANBY, TROTT, and GRABER, Circuit Judges. Rafael Ponce-Medina appeals from the district court’s judgment and challenges the 24-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). Ponce-Medina argues that the district court procedurally erred by failing to consider the Guidelines range and explain the sentence sufficiently. We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and conclude that there is none. The record reflects that the district court used the correctly calculated 10-16 month range as its starting point and adequately explained its reasons for the above-Guidelines sentence. See United States v. Carty, 520 F.3d 984, 991-92 (9th Cir. 2008) (en banc). Ponce-Medina also contends that his sentence is substantively unreasonable in light of the age of his prior convictions and the district court’s alleged overreliance on the 48-month sentence he received for a 2011 immigration conviction before the illegal reentry guideline was amended. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The court acknowledged that some of Ponce-Medina’s prior convictions were stale, but nevertheless concluded that an upward variance was warranted in light of his criminal and immigration history as a whole. The court did not place undue weight on the length of any previous sentence. The above-Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality of the circumstances. See Gall, 552 U.S. at 51. To the extent Ponce-Medina challenges the district court’s decision not to grant a fast-track departure, we conclude that the court did not abuse its discretion. 2 17-50032 See United States v. Rosales-Gonzales, 801 F.3d 1177, 1183-84 (9th Cir. 2015) (district court properly exercised its discretion to deny fast-track departure on the basis of defendant’s immigration and criminal history). AFFIRMED. 3 17-50032 17-50032 Court of Appeals for the Ninth Circuit ca9 9th Cir. United States v. Rafael Ponce-Medina 20 November 2017 Criminal Unpublished 21455438185cd9a4f885ff43d4faa8124a52f384

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