United States of America v. Eduardo Munoz-Camarena

This disposition is not appropriate for publication and is not precedent*
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously finds this case suitable for decision without**
oral argument. Fed. R. App. P. 34(a)(2).
The Honorable Robert J. Timlin, Senior Judge, United States District***
Court for the Central District of California, sitting by designation.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EDUARDO MUNOZ-CAMARENA,
Defendant - Appellant.
No. 11-50138
D.C. No. 3:08-CR-2701-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted October 11, 2011**
Pasadena, California
Before: CALLAHAN and FERNANDEZ, Circuit Judges, and TIMLIN, Senior
District Judge.***
FILED
NOV 07 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Defendant-Appellant Eduardo Munoz-Camarena (“Appellant”) appeals his
sentence for attempted entry after removal. Appellant makes four contentions that
the district court committed significant procedural error in resentencing on remand.
We review purported procedural error for abuse of discretion. United States v.
Spangle, 626 F.3d 488, 497 (9th Cir. 2010), cert. denied, __ S. Ct. ___, 2011 WL
4532051 (Oct. 3, 2011). We affirm.
First, Appellant urges that the district court erred by varying upward from
the Guidelines sentencing range without sufficient explanation. The record reveals
that the district court permissibly based the upward variance on the nature and
similarity of Appellant’s prior immigration convictions. See United States v.
Orlando, 553 F.3d 1235, 1239 (9th Cir. 2009); cf. United States v. Segura-Del
Real, 83 F.3d 275, 277-78 (9th Cir. 1996) (district court may consider repetitive
immigration violations in calculating upward departure from the Guidelines). The
district court’s explanation for imposing an above-Guidelines sentence was
sufficient. See United States v. Hilgers, 560 F.3d 944, 947 (9th Cir. 2009).
Second, Appellant contends that the district court failed to adequately
explain its reasons for the extent of its chosen upward variance. In explaining the
upward variance, the district court was especially cognizant that it needed to “up
the ante” sufficiently from Appellant’s previous sentences to ensure adequate

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To the extent Appellant asks us to question the veracity of the district1
court’s statements, we decline that invitation. See United States v. Carty, 520 F.3d
984, 994 (9th Cir. 2008) (en banc) (notwithstanding some contrary indications in
the record, taking the district court at its word regarding the analysis conducted);
see also Hilgers, 560 F.3d at 946 (same).
To the extent Appellant argues that the district court actually combined the2
conviction sentencing with the revocation sentencing, the district court expressly
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deterrence from future recidivism. The district court’s explanation of the extent of
the variance was sufficient.
Third, Appellant argues that the district court failed to give “respectful
consideration” to the Guidelines. The district court gave sufficient consideration to
the Guidelines, as reflected by the fact that it calculated the correct Guidelines
range, stated that the Guidelines range was the starting point of its analysis, stated
that it was giving the Guidelines respectful consideration, and mentioned the
Guidelines several times during the sentencing. See United States v. Autery, 555
F.3d 864, 873 (9th Cir. 2009).1
Fourth, Appellant posits that the district court improperly considered the
custodial exposure faced by Appellant for violating the terms and conditions of his
supervised release. We are not persuaded that custodial exposure for a related
supervised release violation is beyond the scope of information that a district court
may consider in its broad sentencing discretion. See Pepper v. United States, __
U.S. ___, 131 S.Ct. 1229, 1240 (2011).2

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stated on the record that it did not do so and we take it at its word. See Carty, 520
F.3d at 994; see also Hilgers, 560 F.3d at 946.
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AFFIRMED.

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