United States v. Jose Murillo-Camacho ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50262
Plaintiff-Appellee, D.C. No. 3:20-cr-01620-DMS-1
v.
JOSE ANTONIO MURILLO-CAMACHO, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.
Jose Antonio Murillo-Camacho appeals from the district court’s judgment
and challenges the 24-month sentence imposed following his guilty-plea
conviction for unlawful attempted entry by an alien, in violation of 8 U.S.C.
§ 1325(a). 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).
Murillo-Camacho first contends that the district court erred by comparing
him to defendants convicted of illegal reentry under 8 U.S.C. § 1326 when
determining his sentence. However, the district court’s reference to another
defendant’s § 1326 proceeding was made in the context of a discussion regarding
the government’s decision not to charge Murillo-Camacho with illegal reentry.
Further, the district court properly considered Murillo-Camacho’s prior sentences
for immigration offenses. See 18 U.S.C. §§ 3553(a)(1), (a)(2)(B).
Murillo-Camacho next contends that the district court relied on clearly
erroneous facts by assuming that Murillo-Camacho’s prior removal order was valid
and thereby implicitly applying a 10-level enhancement to his base offense level.
He maintains that, at a minimum, remand is warranted for the district court to
clarify that it did not base the sentence on an incorrect Guidelines range. The
record makes clear, however, that the district court knew the applicable Guidelines
range. It nevertheless determined that an above-Guidelines sentence was
warranted in light of Murillo-Camacho’s immigration and criminal history, which
included prior sentences of 46 and 57 months for immigration offenses. In light of
these circumstances, and the 18 U.S.C. § 3553(a) sentencing factors, the sentence
is substantively reasonable. See United States v. Burgos-Ortega, 777 F.3d 1047,
1056-57 (9th Cir. 2015).
AFFIRMED.
2 20-50262