United States of America v. Oscar Noe Parada-Calderon

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
OSCAR NOE PARADA-CALDERON,
Defendant - Appellant.
No. 15-50019
D.C. No. 3:14-cr-02822-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted December 9, 2015**
Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges.
Oscar Noe Parada-Calderon appeals from the district court’s judgment and
challenges the 12-month sentence and three-year term of supervised release
imposed following his guilty-plea conviction for being a removed alien found in
FILED
DEC 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
First, Parada-Calderon contends that the district court erred by failing to
provide notice under Federal Rule of Criminal Procedure 32(h) of its intent to
depart upwards. The record does not support Parada-Calderon’s contention that
the district court applied an upward departure under either U.S.S.G. §§ 4A1.3(a)(1)
or 5K2.0(a)(2). Instead, the court imposed an upward variance based on the 18
U.S.C. § 3553(a) factors. Therefore, it was not required to give notice under Rule
32(h). See Irizarry v. United States, 553 U.S. 708, 714-16 (2008).
Second, Parada-Calderon contends that the district court procedurally erred
by imposing the sentence based on clearly erroneous facts, namely, that he sold
drugs while in the United States. See United States v. Carty, 520 F.3d 984, 993
(9th Cir. 2008) (en banc). The record does not support this contention. Although
the district court initially stated that Parada-Calderon sold drugs in the United
States, it subsequently recognized that the documents of conviction were
ambiguous as to that question. Moreover, the district court did not err in assessing
the seriousness of Parada-Calderon’s prior convictions.
Third, Parada-Calderon contends that the sentence is substantively
unreasonable in light of the mitigating factors he presented at sentencing and the
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need to avoid unwarranted sentencing disparities. The district court did not abuse
its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence is
substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality
of the circumstances, including Parada-Calderon’s criminal record and
immigration history. See Gall, 552 U.S. at 51. Moreover, the district court did not
abuse its discretion by imposing the term of supervised release as an added
measure of deterrence. See U.S.S.G. § 5D1.1 cmt. n.5; United States v.
Valdavinos-Torres, 704 F.3d 679, 692-93 (9th Cir. 2012).
AFFIRMED.
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