United States of America v. Ricardo Cordero-Ontiveros

* 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).
*** The Honorable H. Russel Holland, Senior United States District Judge
for the District of Alaska, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
RICARDO CORDERO-ONTIVEROS,
Defendant - Appellant.
No. 09-50622
D.C. No. 3:09-cr-03510-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted December 9, 2010**
Pasadena, California
Before: PREGERSON and CLIFTON, Circuit Judges, and HOLLAND, Senior
District Judge. ***
FILED
DEC 21 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Defendant - Appellant Ricardo Cordero-Ontiveros (“Cordero”), a citizen of
Mexico, appeals his 24-month sentence for being a deported alien found in the
United States under 8 U.S.C. § 1326. For the reasons outlined below, we affirm
the district court.
Under de novo review, United States v. Thomas, 355 F.3d 1191, 1194 (9th
Cir. 2004), the district court did not violate Federal Rule of Criminal Procedure 32.
The district court resolved any factual dispute about alien smuggling when it
definitively ruled that “there is no proof of alien smuggling.” After this ruling, the
court did not again refer to alien smuggling. The court also explicitly stated that it
accepted “at face value” Cordero’s explanation that he crossed the border for the
sole purpose of finding work to support his family. The court said, “I take your
word for it that [Cordero’s] reasons are to find a job and find opportunity.”
Cordero claims that the district court abused its discretion by basing its
sentencing decision on unreliable allegations of alien smuggling. Because the
district court explicitly found no evidence of alien smuggling, and therefore did not
base its sentence on such evidence, Cordero’s claim fails. Cf. United States v.
Hanna, 49 F.3d 572, 577 (9th Cir. 1995) (holding that the district court abuses its
discretion if it bases its sentence on materially false or unreliable information).
Finally, the imposition of a 24-month sentence was not unreasonable. The
court considered the relevant sentencing factors under 18 U.S.C. § 3553(a), and

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was within its discretion to give the greatest weight to the factor of deterrence,
especially because this was the fourth time Cordero had been convicted under 8
U.S.C. § 1326. See United States v. Gutierrez-Sanchez, 587 F.3d 904, 908 (9th
Cir. 2009). It was logical and reasonable for the district court to use Cordero’s past
sentences as a starting point for setting his new sentence, given that those prior
sentences had been insufficient to deter Cordero from violating § 1326 again.
Contrary to Cordero’s assertion, the district court did not fail to meaningfully
consider the correct range under the U.S. Sentencing Guidelines. The court began
the sentencing hearing with a discussion of the guideline range, repeatedly referred
back to that range throughout the hearing when weighing the § 3553(a) factors, and
provided detailed reasoning for varying upwards from the guidelines. Thus, the
district court properly used the Sentencing Guidelines as “the starting point and the
initial benchmark[,]” Gall v. United States, 552 U.S. 38, 49 (2008), and kept the
Guidelines in mind throughout the process. United States v. Carty, 520 F.3d 984,
991 (9th Cir. 2008).
AFFIRMED.

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