United States v. Victor Olmedo-Collazo , 362 F. App'x 650 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 13 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-50091
Plaintiff - Appellee, D.C. No. 8:08-cr-00190-CJC-1
v.
MEMORANDUM *
VICTOR MANUEL OLMEDO-
COLLAZO, AKA Victor Luna-Luna,
AKA Luis Enrique Luna,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Submitted January 11, 2010**
Pasadena, California
Before: GOODWIN, CANBY, and O’SCANNLAIN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Defendant Victor Olmedo-Collazo (“Defendant”) appeals the sentence
imposed in his criminal case. We have jurisdiction under 28 U.S.C. § 1291. We
affirm.
Defendant argues that the district court erred in imposing an obstruction of
justice enhancement to his sentence for misrepresenting to the district court the true
identity of his father. Defense counsel identified Defendant’s grandfather, who is
listed as Defendant’s father on Defendant’s official Mexican birth certificate, as
Defendant’s father. Because Defendant’s grandfather is a United States citizen,
such misrepresentation could affect Defendant’s potential citizenship and, in turn,
his charge for illegal reentry after deportation.
Defendant claims he did not obstruct justice because the misrepresentation
was made solely by his counsel. Defendant relies on United States v. Eirven, 987
F.2d 634 (9th Cir. 1993), where the court reversed an obstruction of justice
enhancement when the defense incorrectly asserted that the prior crimes used in
calculating the defendant’s criminal history were committed by another person
using the defendant’s identity. On appeal, the defendant claimed his drug
addiction had left him unable to recall whether he was guilty of the prior crimes.
Id. at 635. The Court concluded that obstruction of justice could not be proven by
a preponderance of the evidence because doing so would require invading the
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attorney-client privilege to determine the defendant’s knowledge and the position
he instructed his lawyer to take. Id. at 636.
Eirven is easily distinguishable. Here, Defendant was 44 years old at the
time of sentencing and has known his father’s identity since he was 29 years old.
Thus, we need not invade the attorney-client privilege to know that Defendant
willfully allowed his unsuspecting counsel to misrepresent Defendant’s paternity to
the district court. Accordingly, the obstruction of justice enhancement was proper.
Defendant also argues that his sentence is unreasonable. Sentencing
decisions are reviewed for abuse of discretion. United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc) (citing Gall v. United States, 552 U.S. 38,
49–50 (2007)). While sentences within the Sentencing Guidelines range are not
presumed reasonable, they are not often found unreasonable on appeal. Id. at 994.
Here, the district court carefully considered the relevant factors. Indeed, the court
imposed a downward departure from the Sentencing Guidelines range. The district
court did not abuse its discretion in imposing Defendant’s sentence.
Defendant further argues that the district court did not comply with Federal
Rule of Criminal Procedure 32(i)(3) in considering sentence-enhancing factors.
We review de novo the district court’s compliance with Rule 32. United States v.
Herrera-Rojas, 243 F.3d 1139, 1142 (9th Cir. 2001). Rule 32 findings must be
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express, but need not be detailed or lengthy. United States v. Ingham, 486 F.3d
1068, 1074 (9th Cir. 2007). Here, the district court discussed at length whether it
could rely on the aggravating factors. (1 ER 36–39). Accordingly, Rule 32 was
satisfied.
Finally, Defendant raises two objections that he acknowledges are
foreclosed by Ninth Circuit precedent in order to preserve them for further review.
Defendant argues that the district court should not have counted Defendant’s 2005
offenses as part of his prior criminal history because those offenses occurred
during the commission of the instant offense of illegal reentry after deportation.
That argument is foreclosed by United States v. Cruz-Gramajo, 570 F.3d 1162 (9th
Cir. 2009). Defendant also argues that a condition of Defendant’s supervised
release–that he report to the probation office within 72 hours of any reentry into
the United States–violates his Fifth Amendment right against self-incrimination.
That argument is foreclosed by, inter alia, United States v. Maciel-Vasquez, 458
F.3d 994, 996–97 (9th Cir. 2006), cert. denied Maciel-Vasquez v. United States,
550 U.S. 905 (2007).
AFFIRMED.
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