USA V. EFRAIN ALVARADO-GUTIERREZ, No. 15-50159 (9th Cir. 2016)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JAN 26 2016 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 15-50159 D.C. No. 3:15-cr-07030-LAB v. MEMORANDUM* EFRAIN ALVARADO-GUTIERREZ, a.k.a. Chibo, a.k.a. Efrain Gutierrez Alvarado, Defendant - Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted January 20, 2016** Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges. Efrain Alvarado-Gutierrez appeals from the district court’s judgment and challenges the 12-month custodial sentence and two-year term of supervised release imposed upon revocation of supervised release. We have jurisdiction under * 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). 28 U.S.C. § 1291, and we affirm. Alvarado-Gutierrez contends that the district court procedurally erred by failing to provide a reasoned basis for exercising its discretion under Kimbrough v. United States, 552 U.S. 85 (2007), to reject U.S.S.G. § 5D1.1(c). His reliance on Kimbrough is misplaced. While section 5D1.1(c) states that a district court should not ordinarily impose a term of supervised release if the defendant is a deportable alien, it also provides that supervised release may be appropriate in such cases if it will provide an added measure of deterrence. See U.S.S.G. § 5D1.1 cmt. n.5. The district court’s decision to impose supervised release on the basis of its finding that doing so would provide an added measure of deterrence in Alvarado-Gutierrez’s case was, therefore, consistent with the Guidelines. Alvarado-Gutierrez also contends that the 12-month custodial sentence and two-year term of supervised release are substantively unreasonable. The district court did not abuse its discretion. See Gall v. United States, 552 U.S. 38, 51 (2007). The within-Guidelines custodial sentence and term of supervised release are substantively reasonable in light of the 18 U.S.C. § 3583(e) sentencing factors and the totality of the circumstances, including the need to afford adequate deterrence. See Gall, 552 U.S. at 51; United States v. Valdavinos-Torres, 704 F.3d 679, 692-93 (9th Cir. 2012). AFFIRMED. 2 15-50159
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