United States v. Serafin Hernandez-Garcia , 455 F. App'x 788 ( 2011 )

FILED
NOT FOR PUBLICATION OCT 27 2011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. 11-50089
Plaintiff - Appellee, D.C. No. 3:09-cr-01802-GT
v.
MEMORANDUM *
SERAFIN HERNANDEZ-GARCIA,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, District Judge, Presiding
Submitted October 25, 2011 **
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
Serafin Hernandez-Garcia appeals from the 33-month sentence imposed
following his conviction for being a deported 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 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).
Hernandez-Garcia contends that the district court improperly departed
upward on the basis of criminal history when calculating his Guidelines range, and
that the district court failed to provide the requisite reasoned explanation of the
departure. This contention is without merit, where the record shows that 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); see also United States v. Ellis, 641 F.3d 411, 421-22 (9th
Cir. 2011) (affirming that “it is not necessary to consider whether the district court
correctly applied U.S.S.G. § 4A1.3 ... [but] only whether the defendant’s ultimate
sentence was reasonable”). In light of the totality of the circumstances and the 18
U.S.C. § 3553(a) sentencing factors, the sentence is substantively reasonable. See
Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.
2 11-50089