United States of America v. Doroteo Ruiz-Hernandez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DOROTEO RUIZ-HERNANDEZ,
Defendant-Appellant.
No. 21-50136
D.C. Nos.
3:21-cr-00139-TWR-1
3:21-cr-00139-TWR
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Todd W. Robinson, District Judge, Presiding
Argued and Submitted February 10, 2022
Pasadena, California
Before: SCHROEDER, LIPEZ,** and LEE, Circuit Judges.
Doroteo Ruiz-Hernandez appeals his 36-month sentence for illegal reentry in
violation of 8 U.S.C. § 1326. The sentence exceeded the government’s request by
nearly 24 months. The sentence was also 12 months above the presentence
FILED
FEB 18 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.

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report’s recommendation, which represented the high end of the guideline range.
We remand for resentencing.
The district court relied on Ruiz-Hernandez’s criminal and removal history
to support the sentencing decision, stating that the unlawful reentry at issue
followed a second deportation. The timeline the court described was inaccurate,
however, as the defendant had been deported only once. Ruiz-Hernandez provided
evidence of rehabilitation that the district court did not address and that related
both to the 18 U.S.C. § 3553 factors and to the court’s recidivism concerns. See
United States v. Trujillo, 713 F.3d 1003, 1008-09 (9th Cir. 2013). The court did
not explain its rejection of the parties’ joint request for a downward variance on
account of the defendant’s waiver of indictment and of any claim that the
prosecution violated a right to speedy trial.
The Supreme Court has held that when a federal court imposes a sentence
outside the guideline range, it must provide a justification that supports the degree
of variance. Gall v. United States, 552 U.S. 38, 50 (2007); United States v. Carty,
520 F.3d 984, 990-93 (9th Cir. 2008). A sentence like the one the district court
imposed, constituting a major departure from the guideline range, requires a
significant justification. Id. The district court in this case did not provide an
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analysis that would support this significant variation from the guidelines and even
greater variation from the government’s recommendation.
The motion to take judicial notice of removal documents is granted.
Vacated and Remanded.
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