United States of America v. Gumercindo Rodriguez-Santes

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
GUMERCINDO RODRIGUEZ-SANTES,
Defendant - Appellant.
No. 12-10405
D.C. No. 4:12-cr-00790-CKJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Christina Reiss, Chief Judge, Presiding**
Submitted December 17, 2013***
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Gumercindo Rodriguez-Santes appeals from the district court’s judgment
and challenges the 51-month sentence imposed following his guilty-plea
FILED
DEC 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Christina Reiss, Chief Judge of the United States
District Court for the District of Vermont, sitting by designation.
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

conviction for reentry after deportation, in violation of 8 U.S.C. § 1326. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Rodriguez-Santes contends that the district court procedurally erred by
failing to appreciate its discretion under Kimbrough v. United States, 552 U.S. 85
(2007), to deviate from the Sentencing Guidelines based on policy differences with
the Guidelines, and by basing his sentence on a factually incorrect finding. We
review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,
1108 & n.3 (9th Cir. 2010), and we find none. The record reflects that the district
court considered Rodriguez-Santes’s policy-based argument, but found that
argument unpersuasive and therefore declined to exercise its discretion to vary
from the Guidelines on those grounds. See United States v. Henderson, 649 F.3d
955, 964 (9th Cir. 2011) (“[D]istrict courts are not obligated to vary from the . . .
Guidelines on policy grounds if they do not have, in fact, a policy disagreement
with them.”). Additionally, the district court’s finding that Rodriguez-Santes had
“a number” of reentries was not factually incorrect, because the undisputed
presentence report (“PSR”) indicated that he reentered the country three times. See
United States v. Ameline, 409 F.3d 1073, 1085 (9th Cir. 2005) (en banc) (court
may rely on undisputed facts in PSR at sentencing).
12-10405 2

-- 2 of 3 --

Rodriguez-Santes also contends that his sentence is substantively
unreasonable under United States v. Amezcua-Vasquez, 567 F.3d 1050 (9th Cir.
2009), in light of the staleness of his prior conviction and other mitigating factors.
The district court did not abuse its discretion in imposing Rodriguez-Santes’s
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The 51-month
sentence at the bottom of the Guidelines range is substantively reasonable in light
of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the circumstances,
including Rodriguez-Santes’s prior 38-month sentence for reentry after
deportation. See id.
AFFIRMED.
12-10405 3

-- 3 of 3 --