United States of America v. Sergio Ivan Gutierrez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
SERGIO IVAN GUTIERREZ,
Defendant - Appellant.
No. 12-10648
D.C. No. 3:10-cr-00349-JSW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Submitted January 21, 2014**
Before: CANBY, SILVERMAN, and PAEZ, Circuit Judges.
Sergio Ivan Gutierrez appeals from the district court’s judgment and
challenges the 144-month sentence imposed following his jury-trial conviction for
one count of conspiracy to commit mail fraud, in violation of 18 U.S.C. § 1349,
FILED
JAN 24 2014
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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and seven counts of mail fraud, in violation of 18 U.S.C. § 1342. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
Gutierrez contends that the district court erred by failing to give him notice
as required by Federal Rule of Criminal Procedure 32(h) before imposing an
upward departure. Because the district court imposed a variance rather than a
departure, Rule 32(h) does not apply. See Irizarry v. United States, 553 U.S. 708,
714 (2008).
Gutierrez also contends that the district court procedurally erred by
improperly relying on Gutierrez’s failure to apologize to the victims, and by failing
to give a sufficient explanation for the sentence. 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 properly considered Gutierrez’s personal characteristics,
including his lack of contrition and failure to apologize, in the context of the 18
U.S.C. § 3553(a) sentencing factors, and adequately explained the sentence
imposed. See United States v. Carty, 520 F.3d 984, 991-93 (9th Cir. 2008) (en
banc).
Gutierrez further contends that his sentence is substantively unreasonable.
The district court did not abuse its discretion in imposing Gutierrez’s sentence. See
Gall v. United States, 552 U.S. 38, 51 (2007). The sentence nine months above the
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Guidelines range is substantively reasonable in light of the section 3553(a)
sentencing factors and the totality of the circumstances, including Gutierrez’s
failure to acknowledge the substantial harm to his victims, and the need for
deterrence and protection of the public. See id.
AFFIRMED.
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