United States of America v. Rafael Ponce-Medina

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RAFAEL PONCE-MEDINA,
Defendant-Appellant.
No. 17-50032
D.C. No. 3:16-cr-01988-DMS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted November 15, 2017**
Before: CANBY, TROTT, and GRABER, Circuit Judges.
Rafael Ponce-Medina appeals from the district court’s judgment and
challenges the 24-month sentence imposed following his guilty-plea conviction for
being a removed alien found in the United States, in violation of 8 U.S.C. § 1326.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
NOV 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Ponce-Medina argues that the district court procedurally erred by failing to
consider the Guidelines range and explain the sentence sufficiently. We review for
plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010), and conclude that there is none. The record reflects that the district court
used the correctly calculated 10-16 month range as its starting point and adequately
explained its reasons for the above-Guidelines sentence. See United States v.
Carty, 520 F.3d 984, 991-92 (9th Cir. 2008) (en banc).
Ponce-Medina also contends that his sentence is substantively unreasonable
in light of the age of his prior convictions and the district court’s alleged
overreliance on the 48-month sentence he received for a 2011 immigration
conviction before the illegal reentry guideline was amended. The district court did
not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The
court acknowledged that some of Ponce-Medina’s prior convictions were stale, but
nevertheless concluded that an upward variance was warranted in light of his
criminal and immigration history as a whole. The court did not place undue weight
on the length of any previous sentence. The above-Guidelines sentence is
substantively reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality
of the circumstances. See Gall, 552 U.S. at 51.
To the extent Ponce-Medina challenges the district court’s decision not to
grant a fast-track departure, we conclude that the court did not abuse its discretion.

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See United States v. Rosales-Gonzales, 801 F.3d 1177, 1183-84 (9th Cir. 2015)
(district court properly exercised its discretion to deny fast-track departure on the
basis of defendant’s immigration and criminal history).
AFFIRMED.

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