United States of America v. Jose Gonzalez

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JOSE GONZALEZ,
Defendant-Appellant.
No. 22-50098
D.C. No.
2:09-cr-00466-DSF-9
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted May 9, 2023**
Pasadena, California
Before: HURWITZ and R. NELSON, Circuit Judges, and KANE,*** District
Judge.
Jose Gonzalez challenges the sentence imposed upon revocation of
supervised release following his admission to illegal entry after deportation, among
* 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).
*** The Honorable Yvette Kane, United States District Judge for the
Middle District of Pennsylvania, sitting by designation.
FILED
MAY 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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other violations. We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C.
§ 1291, and we affirm.
1. Gonzalez first argues that the district court plainly erred by failing to
adequately explain its reasons for imposing a twenty-four-month sentence, which
was above the United States Sentencing Guidelines (the “Guidelines”) range of six
to twelve months. “Whether the district court provided an adequate statement of
reasons for the sentence it imposed is a question of law that we review de novo”—
however, “[i]f a defendant fails to object to the district court’s failure to adequately
state reasons,” the “sentence is reviewed for plain error.” United States v. Miqbel,
444 F.3d 1173, 1176 (9th Cir. 2006). The district court did not plainly err because
it made appropriate reference to 18 U.S.C. §§ 3583(e) and 3553(a), stating that
“this greater period of incarceration than would otherwise be the sentence range is
appropriate” because of the “greater likelihood” that Gonzalez would “pose a
continuing danger to the community, relapse into criminal activity, and continue to
breach the [c]ourt’s trust.” The cases cited by Gonzalez are inapposite. See United
States v. Hammons, 558 F.3d 1100, 1104–05 (9th Cir. 2009) (court failed to give
any reasons for imposition of sentence); United States v. Waknine, 543 F.3d 546,
554 (9th Cir. 2008) (court “gave no reasons in reference to the § 3553(a) factors
before imposing the sentence”).
2. Gonzalez then argues that the district court erred by failing to find, by

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clear and convincing evidence, the facts upon which it relied to increase his
sentence. Gonzalez failed to preserve this issue below, and therefore we review for
plain error. See United States v. Jordan, 256 F.3d 922, 926 (9th Cir. 2001). Any
error cannot be “plain” because Gonzalez points to no controlling authority
indicating that the district court should have applied the clear and convincing
evidence standard—not the preponderance of the evidence standard—when
considering the relevant § 3583(e) factors during the revocation of supervised
release. See United States v. Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir.
2011).
3. Finally, Gonzalez contends that the district court’s sentence was
substantively unreasonable. We review the substantive reasonableness of a
sentence for abuse of discretion, regardless of whether the defendant objected to
the sentence’s reasonableness before the district court. Gall v. United States, 552
U.S. 38, 46, 51 (2007); United States v. Grant, 727 F.3d 928, 933 (9th Cir. 2013).
In reviewing for abuse of discretion, we “take into account the totality of the
circumstances,” Gall, 552 U.S. at 51, and “recognize that ‘[t]he sentencing judge is
in a superior position to find facts and judge their import under § 3553(a) in the
individual case,’” United States v. Blinkinsop, 606 F.3d 1110, 1116 (9th Cir. 2010)
(alteration in original) (quoting Gall, 552 U.S. at 51). In imposing a sentence, “the
district court abuses its discretion only if its decision was ‘(1) illogical,

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(2) implausible, or (3) without support in inferences that may be drawn from the
facts in the record.’” Grant, 727 F.3d at 933 (quoting United States v. Maier, 646
F.3d 1148, 1156 (9th Cir. 2011)).
Viewing the totality of the circumstances, which involved law enforcement’s
post-deportation discovery of Gonzalez living in this country in a home with a
loaded semi-automatic rifle, and a large quantity of stolen goods in his garage, the
district court’s imposition of a twenty-four-month sentence, which was more than
the six- to twelve-month Guidelines range but less than the thirty-three months
sought by the government, and within the sixty-month statutory range, was not
substantively unreasonable. Recognizing the district court’s “superior position to
find facts and judge their import under § 3553(a),” Gall, 552 U.S. at 51 (citation
omitted), the district court did not abuse its discretion in imposing a twenty-four-
month sentence upon revocation of Gonzalez’s supervised release.
AFFIRMED.

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