United States of America v. Jimmy Hernandez-Venegas, a.k.a. Jimmy Gutierrez Venegas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JIMMY HERNANDEZ-VENEGAS, a.k.a.
Jimmy Gutierrez Venegas,
Defendant-Appellant.
No. 17-10162
D.C. No. 4:16-cr-01672-JGZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Jimmy Hernandez-Venegas appeals from the district court’s judgment and
challenges the 46-month sentence imposed following his guilty-plea conviction for
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.
* 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
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-10162
Hernandez-Venegas first contends that the district court’s use of the 2016
Guidelines Manual, in effect at the time of his sentencing, rather than the 2015
Guidelines Manual, in effect at the time of his offense, constituted an ex post facto
violation. Because Hernandez-Venegas did not raise this claim in the district
court, we review for plain error.1 See United States v. Chea, 231 F.3d 531, 535
(9th Cir. 2000). In light of the district court’s sentencing explanation, Hernandez-
Venegas has not shown that any error affected his substantial rights because he
cannot show a reasonable probability that he would have received a different
sentence absent the alleged error. See United States v. Dallman, 533 F.3d 755, 762
(9th Cir. 2008).
Hernandez-Venegas next contends that, even if the court properly used the
2016 Guidelines Manual, his sentence is procedurally and substantively
unreasonable because the district court mistakenly believed that Hernandez-
Venegas would face a 16-level enhancement and a longer sentencing range under
the 2015 Guidelines. We find no reversible error because the court’s alleged
mistake did not affect its sentencing decision. See United States v. Carty, 520 F.3d
984, 993 (9th Cir. 2008) (en banc). Though the court observed that Hernandez-
1 Hernandez-Venegas argues that we should not apply the plain error standard of
review because the issue is a pure question of law and there is no prejudice to the
opposing party. We decline to consider this argument because it was raised for the
first time in the reply brief. See United States v. Mejia-Pimental, 477 F.3d 1100,
1105 n.9 (9th Cir. 2007).

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Venegas would have faced a higher Guidelines range under the 2015 Guidelines
Manual, the record reflects that the court based the sentence on Hernandez-
Venegas’s immigration and criminal history, particularly the fact that he had
illegally reentered the United States just 5 months after completing a 46-month
sentence for his most recent immigration conviction. In light of these
circumstances and the 18 U.S.C. § 3553(a) sentencing factors, the court did not
abuse its discretion by imposing another 46-month sentence. See Gall v. United
States, 552 U.S. 38, 51 (2007).
AFFIRMED.

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