Argued and Submitted November 1, 2010.
Filed November 18, 2010.
Joshua Hill, Jr., Assistant U.S., Office of the U.S. Attorney, Oakland, CA, for Plaintiff-Appellee.
Ned Smock, Assistant Federal Public Defender, Federal Public Defender, Oakland, CA, for Defendant-Appellant.
Appeal from the United States District Court for the Northern District of California, Saundra B. Armstrong, District Judge, Presiding. D.C. No. 4:09-cr-00208-SBA-1.
Before: NOONAN, PAEZ, and BEA, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jose Calvillo-Alvarado appeals his sentence of 70 months' imprisonment, imposed for his conviction of illegal reentry after deportation in violation of 8 U.S.C. § 1326. Calvillo contends the district court erred because it considered itself without discretion to deviate from the United States Sentencing Guidelines. Calvillo further contends the district court failed to consider whether the sentence was "sufficient, but no greater than necessary" under the sentencing factors listed in 18 U.S.C. § 3553(a). Finally, Calvillo contends his sentence is substantively unreasonable. We have jurisdiction under 28 U.S.C. § 1291. We affirm.
Because the parties are familiar with the facts of the case, we will repeat them here only to the extent necessary to explain our decision.
This court reviews federal sentences under an abuse of discretion standard. United States v, Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). Applying that standard, we will overturn, a sentence only if the district court's application of facts to the correct legal standard was "illogical, implausible, or without support in inferences that may be drawn from the record." United States v. Hinkson, 585 F.3d 1247, 1251 (9th Cir. 2009) (en banc).
The record does not show that the district court believed it was without discretion to deviate from the Guidelines. In fact, the district court invited argument as to whether it should apply the Guidelines' 16-point sentencing enhancement to Calvillo's 9-year-old conviction for attempted robbery, and conducted a lengthy discussion regarding the enhancement's applicability to Calvillo's case. Moreover, the district court relied on a presentence report which stated explicitly that the Guidelines are advisory. Furthermore, when the district court issued its sentence, it mentioned United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), which holds that the Guidelines are advisory. Thus, there is sufficient evidence in the record to conclude the district court did not consider itself without discretion to deviate from the Guidelines.
Nor does the record show that the district court failed to consider the § 3553(a) factors. "The district court need not tick off each of the § 3553(a) factors to show that it has considered them." United States v. Carty, 520 F.3d at 992 (9th Cir. 2008). Prior to announcing its sentence, the district court conducted an extensive discussion as to whether Calvillo's nine-year-old conviction for attempted robbery was "stale" for the purposes of his sentence. The district court discussed Calvillo's previous conviction and Calvillo's subsequent behavior, and announced the reasons it considered the nine-year-old conviction and the sentencing enhancement applicable in Calvillo's case. The district court also invited defense counsel to discuss the staleness of Calvillo's conviction as mitigation under § 3553(a). It is thus clear from the record that the district court considered the age of Calvillo's prior conviction as part of the "history and characteristics of the defendant" under § 3553(a)(1). Because a district court need not tick off each § 3553(a) factor, the district court here was certainly not required to repeat its on-the-record discussion in relation to the § 3553(a) factors.
Calvillo's sentence was not substantively unreasonable. Calvillo had a long history of criminal activity and of illegal re-entry into the country after deportation. Moreover, Calvillo had been sentenced to 30 months imprisonment for illegal entry into the country in 2003, which was apparently not sufficient to deter him from reentering the country. Thus, the district court did not abuse its discretion when it imposed a 70-month within-Guidelines sentence.