United States v. Jose Gomez-Arias ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 10 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-50118
Plaintiff-Appellee, D.C. No. 3:19-cr-05277-LAB-1
v.
JOSE ROBERTO GOMEZ-ARIAS,
MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted December 2, 2020**
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Jose Roberto Gomez-Arias appeals from the district court’s judgment and
challenges the 12-month sentence imposed following his guilty-plea conviction for
being a removed alien found in the United States, 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).
Gomez-Arias first contends that the district court erred by failing to address
sufficiently his arguments for a downward variance in light of COVID-19, and by
failing to grant the variance. The court did not plainly err in explaining why it
rejected Gomez-Arias’s request for a variance. See United States v. Valencia-
Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The record reflects that the court
considered Gomez-Arias’s arguments in favor of a time-served sentence, including
his arguments concerning COVID-19, but was not persuaded by them. See Rita v.
United States, 551 U.S. 338, 358 (2007). Moreover, the court did not abuse its
discretion by declining to vary downward from the Guidelines range. See Gall v.
United States, 552 U.S. 38, 51 (2007). The 12-month sentence is substantively
reasonable in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of
the circumstances, including Gomez-Arias’s criminal and immigration history. See
Gall, 552 U.S. at 51.
Gomez-Arias next argues that he is entitled to resentencing because an
appearance of impropriety was created when neither the district judge, nor the
prosecutor, disclosed during the sentencing hearing a forthcoming policy
concerning COVID-19 and the prisons. We disagree. Gomez-Arias concedes that
he can only speculate that the district judge and prosecutor in his case were aware
of the forthcoming policy. Moreover, he can only speculate that, had the policy
been known to him, he would have been able to convince the government to
2 20-50118
recommend, and the district court to impose, a time-served sentence based on
COVID-19, notwithstanding the lack of success he had with that argument at the
sentencing hearing. On this record, Gomez-Arias has not shown an appearance of
impropriety.1 See Martinez v. Ryan, 926 F.3d 1215, 1226-27 (9th Cir. 2019)
(appearance of impropriety cannot be shown through unfounded speculation).
The government’s motion to strike certain portions of the excerpts of record
and references to them in the briefing is granted. These materials were not part of
the district court record, Gomez-Arias has not moved to make them part of the
record on appeal, see Fed. R. App. P. 10(e), and they are not relevant to our
disposition of the appeal.
AFFIRMED.
1
In Gomez-Arias’s reply brief, he argues for the first time that the non-disclosure
of the policy by the district judge and prosecutor also violated his due process
rights. This argument fails for the same reasons.
3 20-50118