United States v. Martin Garcia-Moreno ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-50270
Plaintiff-Appellee, D.C. No. 3:19-cr-01507-AJB-1
v.
MEMORANDUM*
MARTIN GARCIA-MORENO,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Anthony J. Battaglia, District Judge, Presiding
Submitted June 2, 2020**
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
Martin Garcia-Moreno appeals from the district court’s judgment and
challenges the 30-month sentence imposed following his guilty-plea conviction for
attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. 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).
Garcia-Moreno contends that the district court procedurally erred in a
variety of ways, and imposed a substantively unreasonable sentence, by providing
an internally inconsistent justification for the sentence. We review Garcia-
Moreno’s procedural claims for plain error, see United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010), and his claim that his sentence is
substantively unreasonable for abuse of discretion, see Gall v. United States, 552
U.S. 38, 51 (2007).
The record demonstrates that the district court’s explanation for the sentence
was not internally inconsistent. The district court discussed Garcia-Moreno’s
“long history of immigration convictions” and acknowledged the unlikelihood of
deterring him, but explained that general and specific deterrence, as well as the
need to punish and to avoid unwarranted sentencing disparities, remained
important sentencing considerations. The court also acknowledged and gave
weight to Garcia-Moreno’s mitigating argument concerning his early guilty plea.
On this record, the court did not commit plain procedural error. See United States
v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en banc). Moreover, the within-
Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a)
sentencing factors and the totality of the circumstances. See Gall, 552 U.S. at 51.
Garcia-Moreno also argues that his sentence violates the Sixth Amendment
because it exceeds two years and he did not admit, nor did a jury find, that he had a
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prior felony conviction. As Garcia-Moreno concedes, Almendarez-Torres v.
United States, 523 U.S. 224, 235 (1998), forecloses his argument. Contrary to his
contention, United States v. Haymond, 139 S. Ct. 2369 (2019), did not overrule
Almendarez-Torres. See Haymond, 139 S. Ct. at 2377 n.3 (Almendarez-Torres is
not implicated by the issue decided in Haymond); see also United States v. Leyva-
Martinez, 632 F.3d 568, 569 (9th Cir. 2011) (“Almendarez-Torres is binding unless
it is expressly overruled by the Supreme Court.”).
AFFIRMED.
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