United States v. Oscar Juarez , 546 F. App'x 619 ( 2013 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             OCT 04 2013
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 11-50524
    Plaintiff - Appellee,              D.C. No. 2:11-cr-00205-R-1
    v.
    MEMORANDUM*
    OSCAR JUAREZ,
    Defendant - Appellant.
    Appeal from the United States District Court
    for the Central District of California
    Manuel L. Real, District Judge, Presiding
    Argued and Submitted August 28, 2013
    Pasadena, California
    Before: GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
    Judge.**
    Oscar Juarez appeals his 57-month sentence, imposed by the district court
    following a guilty plea to one count of conspiracy to interfere with commerce by
    robbery, in violation of 18 U.S.C. § 1951(a) (“Count Two”). His sentence under
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The Honorable Ivan L.R. Lemelle, District Judge for the United States
    District Court for the Eastern District of Louisiana, sitting by designation.
    Count Two runs consecutively to a mandatory 60-month sentence under Count
    Three,1 which Juarez does not challenge on appeal. We have jurisdiction pursuant
    to 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and we affirm.
    Juarez first argues that the district court improperly applied a four-level role
    enhancement to his offense level after determining that he was “an organizer or
    leader of a criminal activity that involved five or more participants.” U.S.
    Sentencing Guidelines Manual § 3B1.1(a). We review the district court’s finding
    that Juarez was an “organizer or leader” for clear error. United States v. Yi, 
    704 F.3d 800
    , 807 (9th Cir. 2013). We review the district court’s application of the
    Sentencing Guidelines for abuse of discretion. United States v. White Eagle, 
    721 F.3d 1108
    , 1121 (9th Cir. 2013). The district court calculated the Sentencing
    Guidelines as suggested by the pre-sentence report (“PSR”), to which Juarez gave
    no additions or corrections. The PSR recommended a four-level role enhancement
    because Juarez 1) was the sole contact person between his co-conspirators and the
    undercover agents; 2) recruited other participants for the crime; 3) referred
    repeatedly to his “boys” and his “crew” and their experience at committing home
    invasion robberies; and 4) met with the agents four times to plan the robbery.
    1
    Juarez also pled guilty to one count of carrying and using a firearm during
    and in relation to—and possession of a firearm in furtherance of—a drug
    trafficking crime and a crime of violence, in violation of 18 U.S.C. § 924(c)(1)(A).
    2
    Further, Juarez provided firearms to his co-conspirators, decided how the drugs
    would be distributed among them, and convinced one of them to take the blame for
    the guns. While Juarez denied “running the show,” and there is no evidence that
    he would have received a larger share of the stolen drugs than his co-conspirators,
    we cannot say that it was clear error for the district court to find that Juarez was a
    leader or organizer. Nor did the district court abuse its discretion when it applied a
    four-level role enhancement under the Sentencing Guidelines.
    Juarez also argues that in sentencing him to 57 months under Count Two,
    the district court erred in upwardly departing from the Guidelines, which
    recommended a sentence of between 41-51 months based on criminal history
    category I and offense level 22. He further contends that the district court failed to
    sufficiently explain its reasoning for the sentence, which Juarez argues is
    substantively unreasonable. If we determine that the district court’s sentencing
    decision is “procedurally sound,” we review the substantive reasonableness of the
    sentence for abuse of discretion. United States v. Henderson, 
    649 F.3d 955
    , 958
    (9th Cir. 2011). “[W]e must defer ‘to the District Court’s reasoned and reasonable
    decision that the [18 U.S.C.] § 3553(a) factors, on the whole, justified the
    sentence.’” United States v. Ruff, 
    535 F.3d 999
    , 1003 (9th Cir. 2008) (quoting Gall
    v. United States, 
    552 U.S. 38
    , 59-60 (2007)). The abuse of discretion standard
    3
    applies “[r]egardless of whether the sentence imposed is inside or outside the
    Guidelines range.” Gall, 552 U.S. at 51.
    Juarez mistakenly argues that the district court followed the government’s
    recommendation to place him in criminal history category II. The government had
    recommended an upward departure to criminal history category II, but the district
    court did not adopt that recommendation, and it explicitly sentenced Juarez in light
    of “a criminal history of I.” The “upward departure” that Juarez contends is in
    error was not the result of an elevated criminal history category; rather, it was a
    six-month upward variance imposed by the district court pursuant to its authority
    under United States v. Booker, 
    543 U.S. 220
     (2005), “to reflect the seriousness of
    the offense, to promote respect for the law, and to provide just punishment for the
    offense.” 18 U.S.C. § 3553(a). The district court’s sentencing decision was
    procedurally sound.
    With respect to the substantive reasonableness of Juarez’s sentence, the
    district court property calculated the Sentencing Guidelines range and decided that
    the upward variance was appropriate under Booker given the facts of the case. The
    district court was “in a superior position” to judge those facts than are we, United
    States v. Whitehead, 
    532 F.3d 991
    , 993 (9th Cir. 2008) (per curiam) (quoting Gall,
    552 U.S. at 51), and we cannot say that the district court abused its discretion by
    4
    imposing a six-month upward variance under Booker and the 18 U.S.C. § 3553(a)
    factors, or by sentencing Juarez to 57 months under Count Two.
    Moreover, the district court’s expressed reasoning, while limited at the
    sentencing hearing, could be adequately inferred from the PSR and from the
    record. See United States v. Blinkinsop, 
    606 F.3d 1110
    , 1114 (9th Cir. 2010).
    Finally, Juarez argues that the district court violated Federal Rule of
    Criminal Procedure 32(i)(3) (“Rule 32”) by failing to resolve controverted facts in
    the record. Here, however, there were no disputed factual issues for the district
    court to resolve at the sentencing hearing; Juarez submitted on his briefs and did
    not make any additions or corrections to the PSR. We conclude that the district
    court did not violate Rule 32.
    AFFIRMED.2
    2
    Because we affirm the district court, we need not address Juarez’s request
    that the case be reassigned to a different judge on remand.
    5
    

Document Info

Docket Number: 11-50524

Citation Numbers: 546 F. App'x 619

Judges: Gould, Lemelle, Rawlinson

Filed Date: 10/4/2013

Precedential Status: Non-Precedential

Modified Date: 8/7/2023