Government of Guam v. Mario Fernando J. Cortez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GOVERNMENT OF GUAM,
Plaintiff-Appellee,
v.
MARIO FERNANDO J. CORTEZ,
Defendant-Appellant.
No. 18-10242
D.C. No. 1:16-cr-00010-FMTG
MEMORANDUM*
Appeal from the United States District Court
for the District of Guam
Frances M. Tydingco-Gatewood, Chief Judge, Presiding
Submitted January 15, 2019**
Before: TROTT, TALLMAN, and CALLAHAN, Circuit Judges.
Mario Fernando J. Cortez appeals from the district court’s judgment and
challenges the 33-month sentence imposed following his guilty-plea conviction for
attempt to evade and defeat tax, in violation of 26 U.S.C. § 7201, and fraud and
false statements, in violation of 26 U.S.C. § 7206(1). We have jurisdiction under
* 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
JAN 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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28 U.S.C. § 1291, and we affirm, but remand to correct the judgment.
Cortez contends that the government breached the plea agreement by failing
to move for an additional one-level reduction for acceptance of responsibility
under U.S.S.G. § 3E1.1(b). Reviewing de novo, see United States v. Whitney, 673
F.3d 965, 970 (9th Cir. 2012), we conclude that the government did not breach.
The agreement unambiguously stated that the government would move for an
additional one-level adjustment for acceptance of responsibility “if U.S.S.G.
§ 3E1.1(b) applies.” As the government explained at sentencing, section 3E1.1(b)
did not apply because Cortez’s notification of his intention to plead guilty was not
sufficiently timely to permit the government to avoid preparing for trial. See
U.S.S.G. § 3E1.1(b) & cmt. n.6.
Cortez also contends that the district court erred by not departing downward
under U.S.S.G. § 5H1.4 based on his physical illnesses. We review the denial of a
departure not for procedural correctness, but rather as part of our review of the
substantive reasonableness of the sentence. See United States v. Mohamed, 459
F.3d 979, 986-87 (9th Cir. 2006). Notwithstanding Cortez’s physical impairments,
his within-Guidelines sentence is substantively reasonable in light of the 18 U.S.C.
§ 3553(a) sentencing factors and the totality of the circumstances, including the
nature of the offense. See Gall v. United States, 552 U.S. 38, 51 (2007).
The district court erred by electing to run Cortez’s supervised release terms

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consecutively. See 18 U.S.C. § 3624(e). Accordingly, we remand for the district
court to amend the judgment to reflect that the supervised release terms shall run
concurrently.
AFFIRMED; REMANDED to correct the judgment.

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