United States of America v. Jose Larios-Avila

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE LARIOS-AVILA,
Defendant-Appellant.
No. 19-50015
D.C. No.
3:18-cr-04079-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted August 13, 2019**
Pasadena, California
Before: CALLAHAN, FISHER,*** and CHRISTEN, Circuit Judges.
Defendant-Appellant Jose Larios-Avila appeals his sentence, following a
* 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).
*** The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
FILED
AUG 15 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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guilty plea, for illegal entry into the United States in violation of 8 U.S.C. § 1325.1
We have jurisdiction under 28 U.S.C. § 1291. We affirm.
“We review [Larios-Avila]’s sentencing challenges to the district court’s
interpretation of the Sentencing Guidelines de novo . . . and to the application of
the Sentencing Guidelines for abuse of discretion.” United States v. Lloyd, 807
F.3d 1128, 1176 (9th Cir. 2015); see also Gall v. United States, 552 U.S. 38, 49
(2007).
1. Larios-Avila argues the district court committed reversible error by
using a “reasonableness” standard during sentencing instead of the “sufficient, but
not greater than necessary” standard (known as the “parsimony principle”) under
18 U.S.C. § 3553(a). In sentencing Larios-Avila, the court took into account his
lengthy criminal record, high number of aliases and encounters with immigration
officials, and his life history, as well as the guideline range and the parties’
recommended sentence. Although the court used the word “reasonable” in
reference to determining a guideline range or the sentence to be imposed, “taken in
context it is plain that the judge so understood” the parsimony principle for
imposing a sentence because the court clearly looked to § 3553(a) factors—which
explicitly sets forth the parsimony principle—which it applied the requisite
1 The facts and procedural history are known to the parties and thus
used herein only as necessary to resolve the issues.

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sentencing factors. Rita v. United States, 551 U.S. 338, 358 (2007) (finding that
the judge’s use of the word “appropriate” for describing the imposed sentence was
“of course, . . . not the legal standard for imposition of sentence, . . . taken in
context it is plain that the judge so understood”); see also United States v. Carty,
520 F.3d 984, 992 (9th Cir. 2008) (en banc) (noting that district judges are
presumed to know the law). Larios-Avila further argues that the district court’s
contemplation of a shorter sentence shows that it failed to apply the parsimony
principle. But the district court observed that Larios-Avila had not been deterred
by previous sentences, and the shorter sentence was to be accompanied by a five-
year period of supervision. Read in context, the district court did not fail to apply
the parsimony principle.
2. Larios-Avila argues the district court also committed reversible error
by failing to explain its reasons for imposing an 18-month sentence. In
determining whether to vary from the 8-to-14-month guideline range and whether
to impose the statutory maximum sentence of 24 months, the court considered the
§ 3553(a) factors and found that the parties’ recommended sentence was not
“proportionate to the danger [Larios-Avila] poses, [and] the need for deterrence,
given that apparently he wasn’t deterred by those other sentences.” Because “the
record makes clear that the sentencing judge considered the evidence and
arguments,” we agree that the law does not “require[] the judge to write more

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extensively.” Rita, 551 U.S. at 359.
AFFIRMED.

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