United States of America v. Gerardo Reyna-Gonzalez

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NOT FOR PUBLICATION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.
GERARDO REYNA-GONZALEZ,
Defendant - Appellant.
No. 12-10011
D.C. No. 2:11-cr-00007-KJD
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted July 24, 2013**
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Gerardo Reyna-Gonzalez appeals from the district court’s judgment and
challenges the 57-month sentence and three-year term of supervised release
imposed following his guilty-plea conviction for being a deported alien found
FILED
AUG 01 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-10011 2
unlawfully in the United States, in violation of 8 U.S.C. § 1326. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The government contends that the appeal is untimely. We disagree. Reyna-
Gonzalez filed his notice of appeal (“NOA”) as an attachment to a timely motion to
extend time to file an appeal. Because the district court granted that motion and
the NOA was filed within 30 days of the original deadline to file an appeal, this
appeal is timely. See Fed. R. App. P. 4(b)(4).
Reyna-Gonzalez contends that the district court erred by failing to appreciate
its discretion under Kimbrough v. United States, 552 U.S. 85 (2007), to deviate
from the advisory sentencing Guidelines based on policy differences with the
Guidelines. The district court did not err because the record reflects that the court
was aware of its discretion to deviate and it explained why it chose not to do so.
Reyna-Gonzalez also contends that his sentence is substantively
unreasonable because the sentence does not account for the staleness of his prior
conviction for a drug trafficking offense, which triggered a 16-level enhancement.
The district court did not abuse its discretion. See Gall v. United States, 552 U.S.
38, 51 (2007). The within-Guidelines sentence is substantively reasonable in light
of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,
including Reyna-Gonzalez’s criminal history and individual circumstances. See id.

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Reyna-Gonzalez finally contends that the three-year term of supervised
release is substantively unreasonable because the Guidelines ordinarily recommend
against imposing supervised release on deportable aliens. In light of Reyna-
Gonzalez’s continued motive to return to the United States after release and the
need to protect the public, the district court did not abuse its discretion by imposing
the term of supervised release. See U.S.S.G. § 5D1.1 cmt. n.5 (sentencing court
should consider imposing a term of supervised release when “it would provide an
added measure of deterrence and protection based on the facts and circumstances
of a particular case”).
AFFIRMED.

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