USA V. FERNANDO OROZCO-URANGA, No. 17-50357 (9th Cir. 2018)
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NOT FOR PUBLICATION FILED JUN 15 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, No. U.S. COURT OF APPEALS 17-50357 D.C. No. 3:17-cr-01262-LAB v. MEMORANDUM* FERNANDO OROZCO-URANGA, Defendant-Appellant. Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding Submitted June 12, 2018** Before: RAWLINSON, CLIFTON, and NGUYEN, Circuit Judges. Fernando Orozco-Uranga appeals from the district court’s judgment and challenges the 41-month sentence imposed following his guilty-plea conviction for attempted reentry of a removed alien, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm. * 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). Orozco-Uranga contends that the district court improperly double counted when it imposed a four-level enhancement for a prior illegal reentry offense and then used that offense to justify a lesser fast-track departure than that recommended by the parties. The court did not abuse its discretion. See United States v. Christensen, 732 F.3d 1094, 1100 (9th Cir. 2013). First, the four-level enhancement reflected only one of Orozco-Uranga’s four prior immigration offenses, while the district court denied the fast-track departure on the basis of Orozco-Uranga’s immigration history as a whole. Second, double counting is impermissible only “when one part of the Guidelines is applied to increase a defendant’s punishment on account of a kind of harm that has already been fully accounted for by application of another part of the Guidelines.” United States v. Stoterau, 524 F.3d 988, 1001 (9th Cir. 2008) (internal quotations omitted). Here, the district court correctly applied a four-level enhancement based on OrozcoUranga’s prior illegal reentry conviction, see U.S.S.G. § 2L1.2(b)(1)(A) (2016), and then decreased Orozco-Uranga’s base offense level under U.S.S.G. § 5K3.1. The court did not double count or otherwise err by considering Orozco-Uranga’s prior immigration offense in granting only a one-level reduction. See United States v. Rosales-Gonzales, 801 F.3d 1177, 1184 (9th Cir. 2015) (under 18 U.S.C. 2 17-50357 § 3553(a), district court may consider defendant’s immigration history to determine whether to grant fast-track reduction and the proper sentence). Nor does the record support Orozco-Uranga’s assertion that the court misapplied the Guidelines calculation to create the sentencing range it preferred. See id. at 118182. AFFIRMED. 3 17-50357
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