United States of America v. Leonel Gomez-Yanez

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NOT FOR PUBLICATION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.
LEONEL GOMEZ-YANEZ,
Defendant - Appellant.
No. 13-50116
D.C. No. 3:12-cr-05221-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted August 14, 2013**
Before: SCHROEDER, GRABER, and PAEZ, Circuit Judges.
Leonel Gomez-Yanez appeals from the district court’s judgment and
challenges the 12-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.
FILED
AUG 19 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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13-50116 2
Gomez-Yanez contends the district court procedurally erred by failing to
correctly calculate the applicable Guidelines range and by not stating whether the
fast-track departure recommended by the parties was included in the calculation.
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 rejected the
fast-track departure and properly calculated the Guidelines range without the
departure. Further, any failure to reconcile the parties’ calculations of Gomez-
Yanez’s criminal history score was harmless because the court used the lower
score.
Gomez-Yanez also contends his sentence is substantively unreasonable
because the district court improperly relied upon his unauthorized employment and
made illogical inferences from his past criminal history. The district court did not
abuse its discretion in imposing Gomez-Yanez’s sentence. See Gall v. United
States, 552 U.S. 38, 51 (2007). The record reflects that Gomez-Yanez’s past
employment and his history of driving under the influence were relevant to the 18
U.S.C. § 3553(a) sentencing factors, including the need to promote respect for the
law, afford adequate deterrence, and protect the public. The within-Guidelines
sentence is substantively reasonable.
AFFIRMED.

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