United States of America v. Jorge Torres-Gonzalez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JORGE TORRES-GONZALEZ,
Defendant-Appellant.
No. 18-50269
D.C. No. 3:17-cr-04136-LAB-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted July 15, 2019**
Before: SCHROEDER, SILVERMAN, and CLIFTON, Circuit Judges.
Jorge Torres-Gonzalez appeals from the district court’s judgment and
challenges the 68-month sentence imposed following his jury-trial 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
JUL 18 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Torres-Gonzalez first contends that the district court’s pre-trial ruling that it
would deny a fast-track departure under U.S.S.G. § 5K3.1 violated his
constitutional rights and unfairly compelled him to go to trial. However, the
district court has discretion to grant or deny a fast-track departure, and the record
refutes Torres-Gonzalez’s suggestion that the district court’s reason for denying
the reduction was improper. See United States v. Rosales-Gonzales, 801 F.3d
1177, 1184 (9th Cir. 2015) (district court may exercise its discretion to deny a fast-
track reduction based on the defendant’s criminal and immigration history).
Moreover, because Torres-Gonzalez ultimately elected to go to trial, the district
court properly concluded that he was ineligible for the departure. See United
States v. Heredia, 768 F.3d 1220, 1237 (9th Cir. 2014) (fast-track departures are
available to defendants “who quickly plead guilty”).
Torres-Gonzalez also contends that the district court misapplied U.S.S.G.
§ 3E1.1 and violated his constitutional rights by denying an acceptance of
responsibility adjustment after indicating pre-trial that he would receive the
adjustment. However, the court’s statement that Torres-Gonzalez would receive
the adjustment was made before he elected to withdraw his guilty plea and go to
trial. Contrary to Torres-Gonzalez’s argument, the record reflects that the court
thereafter denied the adjustment, not on the basis that Torres-Gonzalez went to
trial, but rather because he contested his factual guilt at trial and did not show

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contrition at sentencing. The court’s finding that these actions reflected that
Torres-Gonzalez did not accept responsibility for his offense was not clearly
erroneous. See U.S.S.G. § 3E1.1 cmt. n.2; United States v. Rodriguez, 851 F.3d
931, 949 (9th Cir. 2017) (acceptance adjustment “is not intended to apply to a
defendant … who puts the government to its burden of proof at trial by denying the
essential factual elements of guilt” (internal quotation marks omitted)).
Lastly, Torres-Gonzalez contends that the sentence is substantively
unreasonable. The district court did not abuse its discretion. See Gall v. United
States, 552 U.S. 38, 51 (2007). The 68-month sentence is substantively reasonable
in light of the 18 U.S.C. § 3553(a) sentencing factors and the totality of the
circumstances, including Torres-Gonzalez’s criminal and immigration history. See
Gall, 552 U.S. at 51.
AFFIRMED.

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