United States v. Hernan Sicairos-Tamayo

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2022

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 21-30086

21-30087 Plaintiff-Appellee,

v. D.C. Nos. 4:20-cr-06014-SMJ-1

4:20-cr-06013-SMJ-1 HERNAN SICAIROS-TAMAYO, AKA Jose Beltran-Acosta,

MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Washington Salvador Mendoza, Jr., District Judge, Presiding

Submitted February 15, 2022**

Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.

In these consolidated appeals, Hernan Sicairos-Tamayo appeals from the district court’s judgments and challenges the 41-month sentence imposed following his guilty-plea conviction for being an alien in the United States after deportation, in violation of 8 U.S.C. § 1326, and 8-month consecutive sentence

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. imposed upon revocation of supervised release. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

Sicairos-Tamayo contends that, because the Guidelines overstated the seriousness of his criminal history, the district court erred by denying his objection to his criminal history category. Whether framed as a request for a downward departure under U.S.S.G. § 4A1.3(b) or a variance under the court’s 18 U.S.C. § 3553(a) analysis, we review this claim as part of the sentence’s substantive reasonableness, see United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006), which Sicairos-Tamayo also challenges. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). Notwithstanding Sicairos-Tamayo’s mitigating circumstances, the aggregate 49-month sentence is substantively reasonable in light of the applicable § 3553(a) sentencing factors and the totality of the circumstances, including Sicairos-Tamayo’s three prior unauthorized reentry convictions and his failure to be deterred by sentences of 24, 27, and 37 months. See Gall, 552 U.S. at 51; see also U.S.S.G. § 7B1.3(f).

AFFIRMED.

2 21-30086 & 21-30087