United States of America v. David Ayala-Romero

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NOT FOR PUBLICATION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.
DAVID AYALA-ROMERO,
Defendant - Appellant.
No. 10-50516
D.C. No. 3:10-cr-01466-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted November 21, 2011**
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
David Ayala-Romero appeals from the 77-month sentence imposed
following his guilty-plea conviction for being a deported alien found in the United
States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
FILED
NOV 29 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-50516 2
Ayala-Romero contends that the district court committed plain error by
considering the proceedings in a prior case, when imposing his sentence. The
district court did not plainly err by explaining that, in its view, the proceedings in
the prior case precluded the court from negotiating an appeal waiver in exchange
for a reduced sentence. See United States v. Gonzalez-Melchor, 648 F.3d 959 (9th
Cir. 2011). Moreover, Ayala-Romero has not shown that he was prejudiced by the
district court’s consideration of the proceedings in the prior case. See United
States v. Waknine, 543 F.3d 546, 554-55 (9th Cir. 2008).
Because the district court did not plainly err by considering the proceedings
in the prior case, Ayala-Romero’s Due Process claim also fails.
Ayala-Romero also contends that the district court violated the parsimony
provision of 18 U.S.C. § 3553(a) because it imposed a sentence that was greater
than it believed was necessary to achieve the purposes of sentencing. The record
belies that contention. To the extent that Ayala-Romero challenges the substantive
reasonableness of his 77-month sentence, that challenge also fails. In light of the
totality of the circumstances and the 18 U.S.C. § 3553(a) factors, the sentence at
the low-end of the Guidelines range was reasonable. See United States v. Carty,
520 F.3d 984, 993-94 (9th Cir. 2008) (en banc).

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1100--5500551166 3
Finally, Ayala-Romero contends that the district court’s comments about
another federal defender’s actions in the prior case violated his right to effective
assistance of counsel. Ayala-Romero has not shown that he was prejudiced by the
court’s comments. See United States v. Amlani, 111 F.3d 705, 710 (9th Cir. 1997).
AFFIRMED.

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