United States v. Heriberto Navarrete-Jimenez , 437 F. App'x 595 ( 2011 )

FILED
NOT FOR PUBLICATION JUN 09 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50471
Plaintiff - Appellee, D.C. No. 3:09-cr-04455-WQH
v.
MEMORANDUM *
HERIBERTO NAVARRETE-JIMENEZ,
a.k.a. Erik Navarete-Jimenez,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted May 24, 2011 **
Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
Heriberto Navarrete-Jimenez appeals from the 12-month sentence imposed
upon revocation of supervised release. 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).
Navarrete-Jimenez first contends that the district court imposed a
procedurally unreasonable sentence because it failed to consider the sentencing
factors set forth in 18 U.S.C. § 3583(e) and his mitigation arguments. However,
“the record makes clear that the district court considered the evidence and
arguments of the defendant and based its sentence on an analysis of the advisory
Guidelines range and the provisions of [18 U.S.C. § 3583(e)].” United States v.
Stoterau, 524 F.3d 988, 1000 (9th Cir. 2008).
Navarrete-Jimenez next contends that his sentence is substantively
unreasonable because the district court improperly focused on the timing of the
violation and discounted the mitigating factors. In light of the totality of the
circumstances, including the brief period of time between Navarrete-Jimenez’s
release from custody and his illegal return to the United States, the sentence is not
substantively unreasonable. See Gall v. United States, 552 U.S. 38, 51 (2007).
Navarrete-Jimenez last contends that § 3583(e)(3) is unconstitutional under
Apprendi v. New Jersey, 530 U.S. 466 (2000), and United States v. Booker, 543
U.S. 220 (2005). As he concedes, this contention is foreclosed by United States v.
Huerta-Pimental, 445 F.3d 1220, 1223-25 (9th Cir. 2006), and United States v.
Santana, 526 F.3d 1257, 1262 (9th Cir. 2008).
AFFIRMED.
2 10-50471