United States of America v. Noe Garcia-Lima

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
NOE GARCIA-LIMA,
Defendant-Appellant.
No. 17-50242
D.C. No. 3:17-cr-00383-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Noe Garcia-Lima appeals from the district court’s judgment and challenges
the 48-month sentence and 3-year term of supervised release imposed following
his guilty-plea conviction for attempted reentry of a removed alien, in violation of
8 U.S.C. § 1326. 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
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Garcia-Lima contends that the district court procedurally erred by failing to
respond to his non-frivolous mitigation arguments and sufficiently explain its
substantial upward variance. The record reflects that the court considered and
responded to Garcia-Lima’s mitigation arguments at the sentencing hearing. The
court made clear that, notwithstanding those arguments, it believed that an above-
Guidelines sentence was warranted in light of Garcia-Lima’s criminal and
immigration history. In particular, the court noted that a sentence higher than
Garcia-Lima’s previous 41-month sentence for an immigration offense was
warranted. The court also discussed the 18 U.S.C. § 3553(a) sentencing factors,
noting in particular its concern for deterrence, respect for the law, and protection of
the public. The court satisfied its procedural obligations. See Rita v. United
States, 551 U.S. 338, 356-59 (2007); United States v. Vanderwerfhorst, 576 F.3d
929, 937-38 (9th Cir. 2009).
Garcia-Lima also contends that the district court procedurally erred by
failing to consider the Guidelines’ recommendation that no term of supervised
release be imposed for a deportable alien. See U.S.S.G. § 5D1.1(c). The court did
not plainly err. See United States v. Dallman, 533 F.3d 755, 761 (9th Cir. 2008).
The record makes clear that, even if the court had explicitly acknowledged the
Guidelines provision at issue, it would have imposed the same three-year term of
supervised release given its concerns about Garcia-Lima’s failure to be deterred

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and the danger he poses to the public. See U.S.S.G. § 5D1.1 cmt. n.5; Dallman,
533 F.3d at 762 (no plain error where a defendant cannot a show “a reasonable
probability that he would have received a different sentence” absent the alleged
error).
AFFIRMED.

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