United States of America v. Francisco Mendez-Avalos

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FRANCISCO MENDEZ-AVALOS,
Defendant - Appellant.
No. 13-50079
D.C. No. 3:11-cr-03988-GT
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Gordon Thompson, Jr., District Judge, Presiding
Submitted September 24, 2013**
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Francisco Mendez-Avalos appeals from the district court’s judgment and
challenges the 12-month sentence imposed upon revocation of supervised release.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
OCT 03 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Mendez-Avalos contends that the district court violated Federal Rule of
Criminal Procedure 32(i)(4)(A)(iii) by failing to provide an opportunity for the
government to present its sentencing recommendation. We review for harmless
error. See United States v. Franco-Flores, 558 F.3d 978, 980-81 (9th Cir. 2009).
Even if Rule 32(i)(4)(A)(iii) is applicable to supervised release revocation
proceedings, any error here was harmless because the record reflects that the court
knew of the government’s sentencing recommendation and there is no evidence
Mendez-Avalos would have received a shorter sentence if the government had
been given the opportunity to present its recommendation. See United States v. Ali,
620 F.3d 1062, 1074 (9th Cir. 2010).
Mendez-Avalos also contends that the district court erred procedurally by
failing to consider and respond to his mitigation argument that he had a good-faith
belief that he was a United States citizen at the time of his offense. The record
reflects that the district court considered Mendez-Avalos’s argument and explained
why it did not warrant a lower sentence.
Mendez-Avalos finally contends that the 12-month sentence is substantively
unreasonable. The district court did not abuse its discretion in imposing Mendez-
Avalos’s sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The
within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.

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§ 3583(e) sentencing factors and the totality of the circumstances, including
Mendez-Avalos’s criminal history and breach of the court’s trust. See id.; United
States v. Simtob, 485 F.3d 1058, 1062-63 (9th Cir. 2007).
AFFIRMED.

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