United States of America v. Fabian Santillan

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
FABIAN SANTILLAN,
Defendant - Appellant.
No. 14-50069
D.C. No. 3:13-cr-03519-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Fabian Santillan appeals from the district court’s judgment and challenges
the 16-month sentence imposed following his guilty-plea conviction for attempted
reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
FILED
DEC 1 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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Santillan contends that the district court erred by refusing to grant the
government’s motion for a recommended fast-track departure under U.S.S.G.
§ 5K3.1. “In analyzing challenges to a court’s upward and downward departures
. . . under Section 5K, we do not evaluate them for procedural correctness, but
rather, as part of a sentence’s substantive reasonableness.” United States v. Ellis,
641 F.3d 411, 421 (9th Cir. 2011). The 16-month sentence is substantively
reasonable in light of the 18 U.S.C. § 3553(a) factors and the totality of the
circumstances, including Santillan’s criminal and immigration history. See Gall v.
United States, 552 U.S. 38, 51 (2007).
Santillan also contends that the district court failed to use the correctly
calculated Guidelines as a starting point because it had already arrived at its
preferred sentence before calculating the Guidelines range. We review for
harmless error, see United States v. Munoz-Camarena, 631 F.3d 1028, 1030 & n.5
(9th Cir. 2011) (per curiam), and we find no error. The record reflects that the
district court used the correctly calculated Guidelines as its starting point when
determining the sentence. See United States v. Evans-Martinez, 611 F.3d 635, 643
(9th Cir. 2010) (“[I]t is the pre-departure Guidelines sentencing range that the
district court must correctly calculate.”).
AFFIRMED.
14-50069 2

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