United States of America v. Carlos Gutierrez-Torres

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CARLOS GUTIERREZ-TORRES,
Defendant-Appellant.
No. 17-50101
D.C. No. 3:16-cr-02756-LAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 16, 2018 **
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Carlos Gutierrez-Torres appeals from the district court’s judgment and
challenges the 33-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.
Gutierrez-Torres contends that the district court improperly double counted
* 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).
FILED
JAN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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when it imposed a four-level enhancement for a prior illegal reentry offense and
then used that offense to justify a lesser fast-track departure than that
recommended by the parties and a high-end sentence. The court did not abuse its
discretion. See United States v. Christensen, 732 F.3d 1094, 1100 (9th Cir. 2013).
“Impermissible double counting occurs when one part of the Guidelines is applied
to increase a defendant’s punishment on account of a kind of harm that has already
been fully accounted for by application of another part of the Guidelines.” United
States v. Stoterau, 524 F.3d 988, 1001 (9th Cir. 2008) (internal quotations
omitted). Here, the district court correctly applied a four-level enhancement based
on Gutierrez-Torres’s prior illegal reentry conviction, see U.S.S.G.
§ 2L1.2(b)(1)(A) (2016), and then decreased Gutierrez-Torres’s base offense level
under U.S.S.G. § 5K3.1. The court did not double count or otherwise err by
considering Gutierrez-Torres’s prior immigration offense in determining to grant
only a one-level reduction and impose a high-end sentence. See United States v.
Rosales-Gonzales, 801 F.3d 1177, 1184 (9th Cir. 2015) (under 18 U.S.C.
§ 3553(a), district court may consider defendant’s immigration history to
determine whether to grant fast-track reduction and the proper sentence);
Christensen, 732 F.3d at 1101 (in selecting the sentence, the court may consider
factors already accounted for in the Guidelines calculation). Nor does the record
support Gutierrez-Torres’s assertion that the court manipulated the Guidelines

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calculation to create the sentencing range it preferred. See Rosales-Gonzales, 801
F.3d at 1181.
Gutierrez-Torres also argues that the district court procedurally erred by
failing to address his argument about impermissible double counting and by failing
to explain the sentence adequately. The district court did not plainly err. See
United States v. Valencia-Barragan, 608 F.3d 1103, 1108 (9th Cir. 2010). The
court addressed Gutierrez-Torres’s arguments and adequately explained its reasons
for the sentence. See United States v. Carty, 520 F.3d 984, 992 (9th Cir. 2008) (en
banc). Finally, the 33-month sentence is substantively reasonable in light of the 18
U.S.C. § 3553(a) sentencing factors and the totality of the circumstances, including
the need to deter. See Gall v. United States, 552 U.S. 38, 51 (2007).
AFFIRMED.

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