United States of America v. Daniel Herrera Gonzales

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DANIEL HERRERA GONZALES,
Defendant-Appellant.
No. 17-30171
D.C. No. 2:16-cr-00195-WFN
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Wm. Fremming Nielsen, District Judge, Presiding
Submitted June 12, 2018**
Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges.
Daniel Herrera Gonzales appeals from the district court’s judgment and
challenges the 60-month sentence imposed following his guilty-plea conviction for
failure to register as a sex offender, in violation of 18 U.S.C. § 2250(a)(3). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
* 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
JUN 18 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 17-30171
Gonzales first contends that the district court procedurally erred by failing to
address his argument that his failure to register was motivated by a desire to avoid
homelessness. The district court listened to Gonzales’s argument and indicated its
awareness of the fact that Gonzales was homeless. Notwithstanding that
circumstance, the court concluded that an above-Guidelines sentence was
warranted, explaining that Gonzales’s extensive criminal history indicated that
prior sentences had not deterred him and that he posed a danger to the public. On
this record, the court’s failure to say more was not error. See Rita v. United States,
551 U.S. 338, 358-59 (2007).
Gonzales also argues that the sentence is substantively unreasonable because
it is based solely on his criminal history, rather than on the instant offense. The
district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38,
51 (2007). The court twice noted that, though it was concerned about Gonzales’s
criminal history, it was sentencing him for his failure to register. The above-
Guidelines sentence is substantively reasonable in light of the 18 U.S.C. § 3553(a)
sentencing factors and the totality of the circumstances, including Gonzales’s
extensive criminal history, the severity of his previous crimes, and his failure to be
deterred by prior sentences. See Gall, 552 U.S. at 51.
AFFIRMED.

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