United States of America v. ALEJANDRO GARCIA-JACOBO, AKA Carlos Aguilar Garcia

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO GARCIA-JACOBO, AKA
Carlos Aguilar Garcia,
Defendant - Appellant.
No. 14-50207
D.C. No. 2:10-cr-00192-GHK-1
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
George H. King, Chief District Judge, Presiding
Submitted March 5, 2015 **
Pasadena, California
Before: PREGERSON, PARKER *** , and NGUYEN, Circuit Judges.
FILED
MAR 26 2015
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).
*** The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.

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Alejandro Garcia-Jacobo appeals the district court’s 24-month sentence
imposed for a violation of the terms of his supervised release. We have
jurisdiction under 28 U.S.C. § 1291. Reviewing for plain error, Henderson v.
United States, 133 S. Ct. 1121, 1124-25 (2013), we affirm.
Garcia-Jacobo argues that the sentence imposed as a result of his violation of
supervised release must be vacated in light of United States v. Aguilera-Rios, 769
F.3d 626 (9th Cir. 2014), which was decided after he was sentenced, on the ground
that his substantial rights were violated. Even assuming, without deciding, that
Garcia-Jacobo can challenge a procedural error that occurred at a prior sentencing
hearing, his claim nevertheless fails because he has not shown a reasonable
probability that the district court would have imposed a lower sentence. First,
there is no dispute that the district court imposed a sentence that was within the
correct sentencing guidelines range for a violation of the terms of supervised
release. Second, while the district court did state that it “considered the underlying
range for the underlying conviction,” the court made it clear that it considered “the
underlying conduct” of Garcia-Jacobo’s prior offenses rather than their
classification. Finally, the record demonstrates that the district court believed a
sentence of 24 months, with no supervision to follow, was appropriate to deter
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further violations and address Garcia-Jacobo’s breach of “the trust reposed in him
by the supervision by coming back . . . five days later.”
AFFIRMED.
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