United States v. Guillermo Chavez , 468 F. App'x 759 ( 2012 )

FILED
NOT FOR PUBLICATION FEB 22 2012
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. 10-50260
Plaintiff - Appellee, D.C. No. 2:09-cr-00918-PA
v.
MEMORANDUM *
GUILLERMO ERNEST VASQUEZ-
CHAVEZ, a.k.a. Ernest Vasquez Chavez,
a.k.a. Guillermo Ernesto Vasquez Chavez,
a.k.a. Ernesto Guillermo Vasquez, a.k.a.
Guillermo Ernesto Vasquez,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted February 21, 2012 **
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Guillermo Ernest Vasquez-Chavez appeals from the 100-month sentence
*
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. Appellant. P. 34(a)(2).
imposed following his jury-trial conviction for being an illegal alien found in the
United States following deportation, in violation of 8 U.S.C. § 1326. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm in part and vacate in part.
Vasquez-Chavez contends that the district court procedurally erred by failing
to grant a two-point downward adjustment to his offense level for acceptance of
responsibility under U.S.S.G. § 3E1.1. In light of the record before the district
court, there was no clear error. See United States v. Hopper, 27 F.3d 378, 381-82
(9th Cir. 1994); United States v. Molina, 596 F.3d 1166, 1169-70 (9th Cir. 2010)
(“[C]onflicting stories weigh against a finding that [defendant] accepted
responsibility for his actions.”).
Vasquez-Chavez also contends that the district court procedurally erred by
failing to grant a downward departure under U.S.S.G. § 5K2.12. This contention is
without merit, where the record shows that the district did not procedurally err and
“any deviation from the applicable advisory guidelines range will be viewed as an
exercise of the district court’s post-Booker discretion and reviewed only for
reasonableness.” See United States v. Mohamed, 459 F.3d 979, 987 (9th Cir.
2006).
In his reply brief, Vasquez-Chavez contends that his sentence is
substantively unreasonable. In light of the totality of the circumstances and the
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section 3553(a) sentencing factors, the sentence is substantively reasonable. See
Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Franco-
Lopez, 312 F.3d 984, 993 n.6 (9th Cir. 2002) (though appellant cannot raise new
issues in the reply brief, the court may consider the issue if it was addressed by the
government in its brief).
Vasquez-Chavez further contends that the district court plainly erred in
imposing as a condition of supervised release that he may not associate with
“persons associated with the 18th Street gang.” After sentencing, this court
concluded that this proscription is impermissibly vague and entails a deprivation of
liberty that is greater than necessary to achieve rehabilitative goals. See United
States v. Johnson, 626 F.3d 1085, 1090-91 (9th Cir. 2010). We therefore vacate
this portion of Vasquez-Chavez’s sentence and remand to the district court to
revise the sentence with the benefit of our holding in Johnson.
Finally, we decline to consider Vasquez-Chavez’s request to have the case
reassigned to a different judge on remand. See Bazuaye v. INS, 79 F.3d 118, 120
(9th Cir. 1996) (per curiam) (“Issues raised for the first time in the reply brief are
waived.”)
AFFIRMED in part, VACATED in part and REMANDED.
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