United States of America v. Herminio Garcia-Garcia

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
HERMINIO GARCIA-GARCIA,
Defendant - Appellant.
No. 12-50352
D.C. No. 3:10-cr-01571-JLS
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Submitted November 19, 2013**
Before: CANBY, TROTT, and THOMAS, Circuit Judges.
Herminio Garcia-Garcia appeals from the district court’s judgment and
challenges the 70-month sentence imposed following his guilty-plea conviction for
being a deported 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
DEC 09 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).

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Garcia-Garcia contends that the district court abused its discretion by relying
on U.S.S.G. § 2L1.2(b) in imposing sentence. He argues that section 2L1.2(b) is
not supported by empirical evidence, resulted in improper double counting of his
prior conviction for possession of a controlled substance, arbitrarily increased his
sentence based on unrelated prior conduct, and resulted in a disproportionately
long sentence. These contentions lack merit. See United States v. Salazar-Mojica,
634 F.3d 1070, 1074 (9th Cir. 2011) (rejecting “broad allegation that the
Sentencing Commission lacked justification to authorize increases in offense
levels” under section 2L1.2); United States v. Garcia-Cardenas, 555 F.3d 1049,
1050 (9th Cir. 2009) (per curiam) (finding no improper double counting in using a
prior conviction for a sentencing enhancement and for calculating criminal history
score). The court did not procedurally err in relying on section 2L1.2(b) or
otherwise abuse its discretion in imposing Garcia-Garcia’s sentence. See Gall v.
United States, 552 U.S. 38, 51, 55-56 (2007). The within-Guidelines sentence is
substantively reasonable in light of the totality of the circumstances and the
sentencing factors set forth in 18 U.S.C. § 3553(a). See id. at 51.
AFFIRMED.
12-50352 2

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