U.S. Court of Appeals for the Ninth Circuit, 2013

United States v. Jose Cuevas-Estrada

United States v. Jose Cuevas-Estrada
U.S. Court of Appeals for the Ninth Circuit · Decided April 22, 2013 · Canby, Ikuta, Watford
516 F. App'x 651

United States v. Jose Cuevas-Estrada

Opinion

MEMORANDUM **

Jose Cuevas-Estrada appeals from the district court’s judgment and challenges the 57-month sentence imposed following his guilty-plea conviction for illegal reentry *652 following deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Cuevas-Estrada contends that the district court abused its discretion by denying his request for a cultural assimilation departure on the basis of a clearly erroneous fact, and by denying his request for a downward departure in his criminal history category. This court does not review the denial of a departure; rather, our review is limited to determining whether the court imposed a substantively reasonable sentence. See United States v. Vasquez-Cruz, 692 F.3d 1001, 1008 (9th Cir. 2012). The substantive reasonableness of a sentence is reviewed for abuse of discretion. See Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586, 169 L.Ed.2d 445 (2007).

Contrary to Cuevas-Estrada’s contention, the district court did not abuse its discretion in imposing his sentence. The court varied downward from the advisory Sentencing Guidelines range because it believed that the 16-level enhancement for Cuevas-Estrada’s prior offense was excessive. The sentence is substantively reasonable in light of the totality of the circumstances and the sentencing factors set forth in 18 U.S.C. § 3553(a), including the need to deter and to protect the public. See Gall, 552 U.S. at 51, 128 S.Ct. 586.

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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