United States of America v. Jaime Herrera-Ramos

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JAIME HERRERA-RAMOS,
Defendant - Appellant.
No. 13-10156
D.C. No. 3:12-cr-00054-HDM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Howard D. McKibben, District Judge, Presiding
Submitted December 17, 2013**
Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.
Jaime Herrera-Ramos appeals from the district court’s judgment and
challenges the 77-month sentence imposed following his guilty-plea conviction for
illegal reentry, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
FILED
DEC 30 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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Herrera-Ramos contends that the district court procedurally erred by failing
to consider that he lost the opportunity to benefit from a fast-track plea agreement.
We review for plain error, see United States v. Valencia-Barragan, 608 F.3d 1103,
1108 (9th Cir. 2010), and find none. The district court was aware that the
government offered a prior, more favorable plea, and the court provided defense
counsel with the opportunity to discuss the specific details of the lost fast-track
plea offer. Additionally, to the extent Herrera-Ramos contends that the district
court failed to recognize its authority to vary from the Guidelines range, the record
does not support this contention.
Herrera-Ramos also contends that the sentence is substantively unreasonable
because it is based on a 16-level enhancement under U.S.S.G. § 2L1.2(b), which
lacks any empirical basis and results in a disproportionally high sentence. The
district court did not abuse its discretion in imposing Herrera-Ramos’s sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007). The bottom-of-the-Guidelines
sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and
the totality of the circumstances, including Herrera-Ramos’s violent criminal
history and cultural assimilation. See id.; see also United States v. Ramirez-
Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001) (recognizing the 16-level
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enhancement reflects Congress’s intent to increase penalties for aliens with prior
convictions in order to deter others).
Finally, Herrera-Ramos’s challenge to the use of the prior conviction to
enhance his sentence is foreclosed by United States v. Beng-Salazar, 452 F.3d
1088, 1091 (9th Cir. 2006).
AFFIRMED.
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