United States of America v. Mario Bernabe-Toribio

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MARIO BERNABE-TORIBIO,
Defendant - Appellant.
No. 15-30176
D.C. No. 2:14-cr-00095-RMP
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Submitted June 14, 2016**
Before: BEA, WATFORD, and FRIEDLAND, Circuit Judges.
Mario Bernabe-Toribio appeals from the district court’s judgment and
challenges the six-month sentence imposed following his guilty-plea conviction for
being an alien in the United States after deportation, in violation of 8 U.S.C.
§ 1326(a). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
FILED
JUN 20 2016
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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Bernabe-Toribio contends that the district court procedurally erred by
focusing on the conduct underlying his state conviction rather than the § 1326
charge. We review for plain error, see United States v. Valencia-Barragan, 608
F.3d 1103, 1108 (9th Cir. 2010), and find none. The record reflects that the court
properly considered Bernabe-Toribio’s state conviction in the context of the 18
U.S.C. § 3553(a) factors and sufficiently explained why a six-month sentence was
warranted for the illegal reentry offense. See United States v. Carty, 520 F.3d 984,
991-92 (9th Cir. 2008) (en banc).
Bernabe-Toribio next contends that his sentence is substantively
unreasonable because it fails to take into account his need for alcohol and drug
treatment, which he cannot obtain in prison because of the federal detainer. The
district court did not abuse its discretion in imposing Bernabe-Toribio’s sentence.
See Gall v. United States, 552 U.S. 38, 51 (2007). The within-Guidelines,
consecutive sentence is substantively reasonable in light of the § 3553(a) factors
and the totality of the circumstances, including Bernabe-Toribio’s immigration
history. See Gall, 552 U.S. at 51; United States v. Guitierrez, 587 F.3d 904, 908
(9th Cir. 2009) (“The weight to be given the various factors in a particular case is
for the discretion of the district court.”).
AFFIRMED.
15-30176 2

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