United States of America v. Apolinar Gutierrez-Hernandez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
APOLINAR GUTIERREZ-HERNANDEZ,
Defendant-Appellant.
Nos. 18-50108
18-50109
D.C. Nos. 3:15-cr-00128-LAB
3:13-cr-02582-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, Chief Judge, Presiding
Submitted March 12, 2019**
Before: LEAVY, BEA, and N.R. SMITH, Circuit Judges.
In these consolidated appeals, Apolinar Gutierrez-Hernandez appeals from
the district court’s judgment and challenges the consecutive 18-month and 11-
month sentences imposed upon revocation of supervised release. 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 Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 19 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 18-50108 & 18-50109
Gutierrez-Hernandez contends that the district court procedurally erred by
sentencing him based on the need to punish and to promote respect for the law,
prohibited considerations in a revocation proceeding. See 18 U.S.C. § 3583(e);
United States v. Miqbel, 444 F.3d 1173, 1181-82 (9th Cir. 2006). Reviewing de
novo, see United States v. Hammons, 558 F.3d 1100, 1103 (9th Cir. 2009), we
conclude that the district court did not err. The record demonstrates that the
district court did not impose sentence solely or primarily based on improper
factors. See United States v. Simtob, 485 F.3d 1058, 1063 (9th Cir. 2007).
Gutierrez-Hernandez also contends that the aggregate 29-month sentence is
substantively unreasonable because it is greater than necessary to sanction his
breach of trust. 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. § 3583(e) factors and the totality of the circumstances, including
Gutierrez-Hernandez’s numerous prior reentries into the United States and the
failure of prior, shorter sentences to deter him. See Gall, 552 U.S. at 51.
AFFIRMED.

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