United States of America v. Jesus Venegas-Lares

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
JESUS VENEGAS-LARES,
Defendant - Appellant.
No. 12-10642
D.C. No. 2:12-cr-00408-FJM
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frederick J. Martone, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Jesus Venegas-Lares appeals from the district court’s judgment and
challenges the 77-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.
FILED
NOV 26 2013
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).

-- 1 of 3 --

Venegas-Lares contends that the district court procedurally erred by failing
to address his argument that he was entitled to a variance because his prior felony
conviction that resulted in a 16-level sentencing enhancement was different in kind
and seriousness from other crimes of violence that trigger the same enhancement.
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 district court
entertained Venegas-Lares’s arguments and adequately explained the sentence.
See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en banc)
Venegas-Lares also argues that his sentence is substantively unreasonable
because the district court should have granted him a cultural assimilation departure
and varied downward to avoid creating a unwarranted sentencing disparity between
him and defendants with more violent and dangerous prior felony convictions. Our
review of a district court’s exercise of discretion to depart or vary on the basis of
cultural assimilation is limited to determining whether the court imposed a
substantively reasonable sentence. See United States v. Vasquez-Cruz, 692 F.3d
1001, 1005-08 (9th Cir. 2012), cert. denied, 2013 WL 1841816 (U.S. Oct. 7,
2013). The district court did not abuse its discretion in imposing Venegas-Lares’s
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence at the
bottom of the Guidelines range is substantively reasonable in light of the 18 U.S.C.
12-10642 2

-- 2 of 3 --

§ 3553(a) sentencing factors and the totality of the circumstances, including
Venegas-Lares’s extensive criminal history, the need to afford adequate deterrence,
and to protect the public. See id.; see also U.S.S.G. § 2L1.2 cmt. n.8 (“[A cultural
assimilation] departure should be considered only . . . [where it] is not likely to
increase the risk to the public from further crimes of the defendant.”).
AFFIRMED.
12-10642 3

-- 3 of 3 --