United States v. Javier Lara-Renteria , 585 F. App'x 561 ( 2014 )


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  •                             NOT FOR PUBLICATION
    UNITED STATES COURT OF APPEALS                             FILED
    FOR THE NINTH CIRCUIT                               OCT 23 2014
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    UNITED STATES OF AMERICA,                         No. 13-50419
    Plaintiff - Appellee,               D.C. No. 3:13-cr-01736-LAB-1
    v.
    MEMORANDUM*
    JAVIER LARA-RENTERIA,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Southern District of California
    Larry A. Burns, District Judge, Presiding
    Argued and Submitted July 11, 2014
    Pasadena, California
    Before: WARDLAW, CLIFTON, and BENAVIDES,** Circuit Judges.
    Javier Lara-Renteria appeals the sentence imposed following his guilty plea
    conviction for illegal reentry in violation of 8 U.S.C. § 1326. He contends that the
    district court abused its discretion when it rejected his Rule 11(c)(1)(B) fast-track
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
    U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
    plea agreement, recalculated the sentencing guidelines range, and imposed a term
    of incarceration longer than was recommended by the government, but within the
    recalculated guidelines range. We have jurisdiction under 28 U.S.C. § 1291, and
    we affirm.
    The district court’s rejection of Lara-Renteria’s fast-track plea agreement
    was not an abuse of discretion. United States v. Carty, 
    520 F.3d 984
    , 993 (9th Cir.
    2008). Its refusal to exercise its discretion to decrease the offense level by four for
    early disposition was not substantively unreasonable. See United States v. Ellis,
    
    641 F.3d 411
    , 421 (9th Cir. 2011) (“In analyzing challenges to a court’s upward
    and downward departures to a specific offense characteristic or other adjustment
    under Section 5K, we do not evaluate them for procedural correctness, but rather,
    as part of a sentence’s substantive reasonableness.”). Although the district judge
    accorded substantial deference to the government’s recommendation of a four-
    level reduction in offense level in exchange for his fast-track plea because
    Congress had approved that departure, he rejected the government’s
    2
    recommendation due to an individualized consideration of Lara-Renteria’s criminal
    and immigration history.1
    The district court disagreed with the government’s conclusion that Lara-
    Renteria was an appropriate candidate for fast-track consideration given the criteria
    set forth by the Department of Justice in a memorandum dated January 31, 2012 by
    James M. Cole. Lara-Renteria had a recent conviction under 8 U.S.C. § 1326, for
    which he had violated the terms of supervised release with the offense at issue, and
    for which he had received fast-track treatment. The probation report also revealed
    Lara-Renteria’s extensive criminal history, which included burglary in the second
    degree, possession of and carrying a concealed firearm, grand theft, and numerous
    removals, including one based on his conviction for an aggravated felony.
    Recalculating the guidelines range, the district judge correctly found an offense
    level of thirteen and a criminal history category of five, for a sentencing range of
    thirty to thirty-seven months.
    1
    The sentencing transcript makes clear that the district judge did not apply a
    “blanket policy” against fast-track plea agreements in this case. U.S. v. Gonzalez,
    502 F. App’x 665 (9th Cir. 2012) (holding that a district court’s “blanket policy
    against accepting any binding plea agreements in fast-track cases” was an abuse of
    discretion).
    3
    Turning to the factors identified in 18 U.S.C. § 3553(a), the district judge
    considered Lara-Renteria’s immigration record of prior removals in aggravation,
    and, in mitigation, his U.S. citizen family that resided in the United States
    motivating Lara-Renteria’s repeated unlawful returns. The district judge did not
    abuse his discretion in determining that a term of incarceration of thirty-six months
    was “sufficient, but not greater than necessary” to accomplish the goals of
    sentencing. United States v. Crowe, 
    563 F.3d 969
    , 977 n.16 (9th Cir. 2009). He
    reasoned that a term of thirty-six months would most appropriately deter future
    criminal conduct while protecting the public and promoting respect for the law.
    Nor did the district court plainly err in finding that Lara-Renteria had
    previously been warned not to return to the United States illegally. Lara-Renteria
    had been convicted under 18 U.S.C. § 1326, and his term of supervised release
    included a special condition prohibiting him from reentering the United States
    illegally and requiring him to report to the probation officer within twenty-four
    hours of any reentry. Indeed, his supervised release was subject to revocation for
    violating these conditions.
    AFFIRMED.
    4
    

Document Info

Docket Number: 13-50419

Citation Numbers: 585 F. App'x 561

Filed Date: 10/23/2014

Precedential Status: Non-Precedential

Modified Date: 1/13/2023