USA v. Luis Hernandez-Rio, No. 09-50573 (9th Cir. 2010)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 05 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 09-50573 D.C. No. 3:09-cr-00995-JAH v. MEMORANDUM * LUIS ANGEL HERNANDEZ-RIOS, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. Luis Angel Hernandez-Rios appeals from the 60-month sentence imposed following his guilty-plea conviction for transportation of illegal aliens and aiding and abetting, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (v)(II); and high speed flight from an immigration checkpoint, in violation of 18 U.S.C. § 758. We * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). have jurisdiction under 28 U.S.C. § 1291, and we affirm. Hernandez-Rios contends that the district court placed undue emphasis on aggravating circumstances that were already taken into account by the Sentencing Guidelines and the 18 U.S.C. § 3553(a) sentencing factors when it imposed an upward departure from the advisory Guidelines range. The district court departed upward by two levels, pursuant to U.S.S.G. § 5K2.0, based upon a combination of circumstances that were not adequately taken into consideration by the Guidelines. The record reflects that the district court carefully considered the § 3553(a) sentencing factors, including the need to avoid unwarranted sentencing disparities, and provided a well-reasoned and thorough explanation for the sentence imposed. The district court did not procedurally err, and the sentence is substantively reasonable under the totality of the circumstances. See Gall v. United States, 552 U.S. 38, 51 (2007); see also United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). AFFIRMED. 2 09-50573
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