United States of America v. Jose Luis Roldan-Gil

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE LUIS ROLDAN-GIL,
Defendant-Appellant.
No. 18-50166
D.C. No. 3:17-cr-02526-BEN
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
Jose Luis Roldan-Gil appeals the district court’s judgment and challenges
the 36-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.
* 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
FEB 27 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Roldan-Gil contends that the district court procedurally erred by failing to
explain the reasons for the sentence and its rejection of his deterrence arguments
and request for three-level departure for diminished capacity under U.S.S.G.
§ 5K2.13. We review for harmless error, see United States v. Munoz-Camarena,
631 F.3d 1028, 1030 (9th Cir. 2011), and conclude that the court did not err. The
district court explained that it varied upwards 12 months because of Roldan-Gil’s
extensive immigration history, his lengthy criminal history, and the failure of a
prior 80-month sentence for the same offense to deter him. Additionally, the
record demonstrates that the district court considered Roldan-Gil’s diminished
capacity argument and treated his mental illness as a mitigating factor in its
analysis of the 18 U.S.C. § 3553(a) sentencing factors. The record also
demonstrates that the court considered Roldan-Gil’s deterrence arguments and
simply was not persuaded by them.
Roldan-Gil also contends that the sentence is substantively unreasonable in
light of its finding that Roldan-Gil suffered from a mental illness. The district
court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51
(2007). The above-Guidelines sentence is substantively reasonable in light of the
section 3553(a) sentencing factors and the totality of the circumstances. See id.
Contrary to Roldan-Gil’s contention, the district court reasonably concluded that
Roldan-Gil was a danger to the public based on the entirety of his criminal history,

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which included recent acts of violence in addition to his more remote criminal
convictions.
AFFIRMED.

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