United States v. Ponciano Mata , 609 F. App'x 401 ( 2015 )

FILED
NOT FOR PUBLICATION JUN 29 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50386
Plaintiff - Appellee, D.C. No. 3:14-cr-00509-JLS
v.
MEMORANDUM*
PONCIANO MATA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted June 22, 2015**
Before: HAWKINS, GRABER, and W. FLETCHER, Circuit Judges.
Ponciano Mata appeals from the district court’s judgment and challenges the
60-month sentence imposed following his guilty-plea conviction for attempted
reentry of a removed alien, 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 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Mata contends that his sentence is substantively unreasonable because his
Guidelines range was artificially inflated on the basis of a 2002 conviction that
would have scored fewer points had he not demonstrated ineffective assistance of
counsel in connection with his 1997 guilty plea. The district court did not abuse its
discretion in imposing Mata’s sentence. See Gall v. United States, 552 U.S. 38, 51
(2007). The district court entertained Mata’s arguments about his prior conviction
and agreed to impose a below-Guidelines sentence. The 60-month sentence is
substantively reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and
the totality of the circumstances, including Mata’s criminal and immigration
history, failure to be deterred by prior sentences, and danger to the public. See
Gall, 552 U.S. at 51.
Mata also contends that his sentence should not have exceeded two years
because the fact of the prior conviction that subjected him to enhanced penalties
under 8 U.S.C. § 1326(b) was neither alleged in the information nor admitted by
him. As Mata acknowledges, the Supreme Court rejected this argument in
Almendarez-Torres v. United States, 523 U.S. 224, 239-47 (1998), which has not
been overruled. See Alleyne v. United States, 133 S. Ct. 2151, 2160 n.1 (2013).
We, accordingly, remain bound by Almendarez-Torres. See United States v.
Leyva-Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (per curiam).
AFFIRMED.
2 14-50386