United States of America v. Milton Antonio Hernandez- Serpaz

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
MILTON ANTONIO HERNANDEZ-
SERPAZ,
Defendant - Appellant.
No. 15-50018
D.C. No. 3:14-cr-02190-JAH
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Milton Antonio Hernandez-Serpaz appeals from the district court’s
judgment and challenges the 30-month sentence imposed following his guilty-plea
conviction for being a removed alien found in the United States, in violation of 8
FILED
JAN 28 2016
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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U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The parties agree that the district court erred by applying the preponderance
of the evidence standard when determining whether Hernandez-Serpaz had a
qualifying conviction under U.S.S.G. § 2L1.2(b)(1)(A)(ii). Even assuming they
are correct, we agree with the government that Hernandez-Serpaz has not
demonstrated that the error affected his substantial rights. See United States v.
Jordan, 256 F.3d 922, 926 (9th Cir. 2001) (to be plain, error must have an effect on
defendant’s substantial rights). The National Crime Information Center report,
which expressly stated that it was based on fingerprint comparisons, and the
criminal history report prepared by the probation officer, provided clear and
convincing evidence that Hernandez-Serpaz was convicted of aggravated
kidnapping and attempted armed robbery in 2005.
Hernandez-Serpaz next claims that his sentence is substantively
unreasonable. The district court did not abuse its discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007). The below-Guidelines sentence is substantively
reasonable in light of the applicable 18 U.S.C. § 3553(a) sentencing factors and the
totality of the circumstances, including Hernandez-Serpaz’s criminal history. See
Gall, 552 U.S. at 51.
AFFIRMED.
15-50018 2

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