United States of America v. Joseph Morris Pena

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NOT FOR PUBLICATION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.
JOSEPH MORRIS PENA,
Defendant - Appellant.
No. 09-50398
D.C. No. 2:08-cr-01257-PSG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted July 19, 2010**
Before: B. FLETCHER, REINHARDT, and WARDLAW, Circuit Judges.
Joseph Morris Pena appeals from the 70-month sentence imposed following
his guilty-plea conviction for being an illegal alien found in the United States
following deportation, in violation of 8 U.S.C. § 1326(a). We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
FILED
AUG 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Pena contends that the district court erred under Apprendi v. New Jersey,
530 U.S. 466 (2000), by increasing his sentence on the basis of a prior conviction
that was neither proven to a jury beyond a reasonable doubt nor admitted. This
argument, however, is foreclosed by Almendarez-Torres v. United States, 523 U.S.
224 (1998), and this court’s subsequent cases holding that Almendarez-Torres has
not been overruled by subsequent Supreme Court decisions. See, e.g., United
States v. Almazan-Becerra, 482 F.3d 1085, 1091 (9th Cir. 2007).
Pena further contends that his sentence was unreasonable. Our review of the
record indicates that the district court did not procedurally err and that, under the
totality of the circumstances, the 70-month sentence at the low end of the
Guidelines was not substantively unreasonable. See United States v. Carty, 520
F.3d 984, 991-93 (9th Cir. 2008) (en banc); see also United States v. Menyweather,
447 F.3d 625, 632-33 (9th Cir. 2006) (downward departure under U.S.S.G.
§ 5H1.6 based on family circumstances “generally involve[s] situations where the
defendant is an irreplaceable caretaker of children, elderly, and/or seriously ill
family members”) (quoting United States v. Leon, 341 F.3d 928, 931 (9th Cir.
2003)). The district court was not bound by the parties’ recommendations to
impose a below-Guidelines sentence. See, e.g., United States v. Hurt, 345 F.3d
1033, 1036 (9th Cir. 2003). Nor does the fact that Pena was offered and rejected a

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fast-track plea agreement that would have resulted in a lower Guidelines range
render his sentence unreasonable. See United States v. Vasquez-Landaver, 527
F.3d 798, 805 (9th Cir. 2008).
AFFIRMED.

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