United States of America v. Juan Carlos Santillan

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. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JUAN CARLOS SANTILLAN,
Defendant - Appellant.
No. 10-50352
D.C. No. 3:09-cr-03028-JLS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted November 8, 2011**
Before: O’SCANNLAIN, TASHIMA, and GRABER, Circuit Judges.
Juan Carlos Santillan appeals from the 78-month sentence imposed
following his guilty-plea convictions for attempted entry after deportation, in
violation of 8 U.S.C. § 1326, and making a false claim to United States citizenship,
FILED
NOV 08 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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in violation of 18 U.S.C. § 911. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.
Santillan contends that the district court procedurally erred by failing to
consider his request for a cultural assimilation departure, failing to explain its
decision not to depart, and failing to appreciate its authority to depart. The record
shows that the court entertained Santillan’s arguments regarding the departure, and
Santillan has not established that his sentence would have been different absent the
alleged error. See United States v. Lipman, 133 F.3d 726, 730-32 (9th Cir. 1998)
(cultural assimilation is a permissible basis for departure); United States v.
Dallman, 533 F.3d 755, 762 (9th Cir. 2008) (defendant’s burden to demonstrate
reasonable probability that sentence would have been different absent procedural
error); cf. U.S.S.G. § 2L1.2, cmt. n.8 (cultural assimilation may be proper basis for
departure under 2010 Sentencing Guidelines where it is not likely to increase risk
to public from defendant’s further crimes).
Santillan contends that his sentence was substantively unreasonable. Our
review of a decision not to vary or depart considers only whether the resulting
sentence was substantively reasonable. See United States v. Ellis, 641 F.3d 421-
22 (9th Cir. 2011). The sentence in the middle of the Guidelines range was not
substantively unreasonable in light of the totality of the circumstances and the

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18 U.S.C. § 3553(a) sentencing factors. See Gall v. United States, 552 U.S. 38, 51
(2007).
AFFIRMED.

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