United States of America v. HERNAN SICAIROS-TAMAYO, AKA Jose Beltran-Acosta

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
HERNAN SICAIROS-TAMAYO, AKA
Jose Beltran-Acosta,
Defendant-Appellant.
Nos. 21-30086
21-30087
D.C. Nos. 4:20-cr-06014-SMJ-1
4:20-cr-06013-SMJ-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Salvador Mendoza, Jr., District Judge, Presiding
Submitted February 15, 2022**
Before: FERNANDEZ, TASHIMA, and FRIEDLAND, Circuit Judges.
In these consolidated appeals, Hernan Sicairos-Tamayo appeals from the
district court’s judgments and challenges the 41-month sentence imposed
following his guilty-plea conviction for being an alien in the United States after
deportation, in violation of 8 U.S.C. § 1326, and 8-month consecutive sentence
* 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 22 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 21-30086 & 21-30087
imposed upon revocation of supervised release. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
Sicairos-Tamayo contends that, because the Guidelines overstated the
seriousness of his criminal history, the district court erred by denying his objection
to his criminal history category. Whether framed as a request for a downward
departure under U.S.S.G. § 4A1.3(b) or a variance under the court’s 18 U.S.C.
§ 3553(a) analysis, we review this claim as part of the sentence’s substantive
reasonableness, see United States v. Mohamed, 459 F.3d 979, 987 (9th Cir. 2006),
which Sicairos-Tamayo also challenges. The district court did not abuse its
discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). Notwithstanding
Sicairos-Tamayo’s mitigating circumstances, the aggregate 49-month sentence is
substantively reasonable in light of the applicable § 3553(a) sentencing factors and
the totality of the circumstances, including Sicairos-Tamayo’s three prior
unauthorized reentry convictions and his failure to be deterred by sentences of 24,
27, and 37 months. See Gall, 552 U.S. at 51; see also U.S.S.G. § 7B1.3(f).
AFFIRMED.

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