USA v. Javier Gonzalez-Diaz, No. 10-30002 (9th Cir. 2011)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JAN 24 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff -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. 10-30002 D.C. No. 4:09-cr-00092-SEH-1 v. MEMORANDUM * JAVIER DOLORES GONZALEZ-DIAZ, Defendant - Appellant. UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 10-30030 D.C. No. 4:09-cr-00077-SEH-1 v. JAVIER DOLORES GONZALEZ-DIAZ, Defendant - Appellant. Appeal from the United States District Court for the District of Montana Sam E. Haddon, District Judge, Presiding Argued and Submitted November 5, 2010 Portland, Oregon * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: W. FLETCHER and FISHER, Circuit Judges, and JONES, District Judge.** Javier Dolores Gonzalez-Diaz appeals his conviction and sentence for illegal reentry, identity theft and related offenses. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. Because the facts are known to the parties, we repeat them only as necessary to explain our decision.1 1. The district court properly refused to instruct the jury on official restraint because Gonzalez-Diaz was not entering the United States from a foreign country. See United States v. Ambriz-Ambriz, 586 F.3d 719, 724 (9th Cir. 2009) ( Because the uncontroverted evidence was that [the defendant] never legally left the United States [when he drove into Canada], the official restraint doctrine was not applicable even though he was arrested at a border station. ). 2. The district court did not err by denying Gonzalez-Diaz a sentencing adjustment for acceptance of responsibility. Gonzalez-Diaz did not demonstrate sincere remorse for his conduct. See United States v. Daly, 974 F.2d 1215, 1218 (9th Cir. 1992) (per curiam). Furthermore, although at trial Gonzalez-Diaz raised a ** The Honorable James P. Jones, United States District Judge for the Western District of Virginia, sitting by designation. 1 We address Gonzalez-Diaz s argument that the district court erroneously denied his motion for acquittal in a concurrently filed published opinion. 2 legal defense to being found in the United States, he also contested the factual predicates of his liability, including recanting aspects of his pretrial confession. See U.S.S.G. § 3E1.1 cmt. n. 2 (explaining that a a defendant may clearly demonstrate an acceptance of responsibility for his criminal conduct even though he exercises his constitutional right to a trial in rare situations, including where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (emphasis added)). 3. The district court adequately explained its reasons for rejecting Gonzalez-Diaz s sentencing arguments. The court explained that Gonzalez-Diaz s criminal history score did not overrepresent his criminal history because his previous drug smuggling conviction, although several years old, was serious, and because Gonzalez-Diaz had a previous conviction for illegal reentry and four previous deportations. The court also adequately explained its reasons for applying a 16-level enhancement under U.S.S.G. § 2L1.2(b), stating that although his previous drug conviction was some time ago, it involved the smuggling of a large quantity of unlawful drugs. The district court did not specifically address Gonzalez-Diaz s argument that the court should have rejected § 2L1.2(b) under Kimbrough v. United States, 552 U.S. 85, 109-10 (2007), because § 2L1.2(b) does not reflect empirical data and 3 national experience. Gonzalez-Diaz, however, offers no authority that a district court is required to expressly address each argument in a defendant s sentencing memorandum not distinctly argued during the sentencing hearing. See United States v. Ressam, 593 F.3d 1095, 1119 (9th Cir. 2010) (citing United States v. Goff, 501 F.3d 250, 255 (3d Cir. 2007) ( Although the District Court is not required either to comment on every argument counsel advances or to make findings as to each § 3553(a) factor, it nevertheless should expressly deal with arguments emphasized by the parties . . . . )). Furthermore, even if the district court should have specifically addressed Gonzalez-Diaz s Kimbrough argument at the hearing, there was no plain error because we have repeatedly held that the sentencing scheme under § 1326 and § 2L1.2(b) serves a rational purpose. See United States v. Ruiz-Chairez, 493 F.3d 1089, 1091 (9th Cir. 2007); United States v. Ramirez-Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001). 4. We also reject Gonzalez-Diaz s argument that his sentence is substantively unreasonable in light of the totality of the circumstances. Although Gonzalez-Diaz s drug trafficking conviction was 13 years old, it is a serious smuggling offense. In addition, he has been deported four times, has a previous § 1326 conviction and was on supervised release when the current offenses were committed. Gonzalez-Diaz also benefitted substantially because five of the eight 4 counts were grouped for sentencing purposes. His mid-guidelines-range sentence thus is substantively reasonable. AFFIRMED. 5
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