United States of America v. Alberto Javier Bernardino

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALBERTO JAVIER BERNARDINO,
Defendant - Appellant.
No. 13-50426
D.C. No. 3:13-cr-01719-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
Alberto Javier Bernardino appeals from the district court’s judgment and
challenges the 18-month sentence imposed following his guilty-plea conviction for
being a removed 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
JUN 27 2014
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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Bernardino contends that the district court procedurally erred by failing to
calculate the Guidelines range, address adequately the 18 U.S.C. § 3553(a)
sentencing factors, and explain sufficiently the sentence imposed. We review for
plain error, see United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir.
2010), and find none. Bernardino has not shown a reasonable probability that he
would have received a different sentence had the court explicitly calculated the
Guidelines range. See United States v. Dallman, 533 F.3d 755, 762 (9th Cir.
2008). The record reflects that the court was aware of the Guidelines range,
considered the section 3553(a) sentencing factors, and adequately explained the
sentence.
Bernardino next contends that his sentence is substantively unreasonable
because the court overemphasized his criminal history and ignored mitigating
factors. The district court did not abuse its discretion in imposing Bernardino’s
sentence. See Gall v. United States, 552 U.S. 38, 51 (2007). The sentence, six
months above the advisory Guidelines range, is substantively reasonable in light of
the totality of the circumstances and the section 3553(a) sentencing factors. See id.
AFFIRMED.
13-50426 2

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