USA v. David Martinez-Reye, No. 10-50144 (9th Cir. 2011)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT MAR 02 2011 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 10-50144 D.C. No. 2:09-cr-00018-CAS-1 v. MEMORANDUM* DAVID JAVIER MARTINEZ-REYES, AKA Javier Martinez, AKA Javier David Martinez, AKA David Javier Reyes, Defendant - Appellant. Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding Argued and Submitted February 8, 2011 Pasadena, California Before: REINHARDT, RAWLINSON, and N.R. SMITH, Circuit Judges. Appellant David Martinez-Reyes (Martinez-Reyes) appeals his sentence of fifty-five months imprisonment, following his guilty plea to being an illegal alien found in the United States following deportation in violation of 8 U.S.C. § 1326. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. There was no procedural error because the district court properly calculated the Guideline range, treated the Guidelines as advisory rather than mandatory, applied the 18 U.S.C. § 3553(a) factors, and adequately explained its reasons for selecting the sentence imposed. See United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The district court s skepticism regarding the conclusion of the immigration expert did not constitute procedural error because the sentence was not based on any clearly-erroneous factual finding regarding that issue. See id. The sentence imposed was not substantively unreasonable under the totality of the circumstances. See id. Martinez-Reyes argument regarding the disparity between his sentence and sentences typically imposed upon similarly-situated defendants who accept fast-track plea agreements is not persuasive. See United States v. Gonzalez-Zotelo, 556 F.3d 736, 740 (9th Cir. 2009) (holding that sentencing disparities created by Congressionally-approved fast-track plea bargaining programs are not unwarranted).1 1 Martinez-Reyes also contended at oral argument that the district court s imposition of a sentence greater than the average fast-track sentence punished him for exercising his constitutional right to reject a plea agreement. This contention lacks merit. See Prosecutorial Remedies and Tools Against the Exploitation of Children Today Act of 2003 (PROTECT Act), section 401(m)(2)(B), P.L. 108-21, 117 Stat. 650, 675 (2003) (directing the United States Sentencing Commission to (continued...) 2 Martinez-Reyes concedes that binding precedent forecloses his remaining arguments. Assault with a deadly weapon or force likely to produce great bodily injury, in violation of California Penal Code § 245(a)(1), is categorically a crime of violence under U.S.S.G § 2L1.2(b)(1)(A)(ii). See United States v. Grajeda, 581 F.3d 1186, 1197 (9th Cir. 2009). The use of a defendant s prior conviction to increase a sentence, pursuant to 8 U.S.C. § 1326(b)(2), need not be alleged in the indictment nor proved to a jury beyond a reasonable doubt. See AlmendarezTorres v. United States, 523 U.S. 224, 226-27 (1998); see also Grajeda, 581 F.3d at 1197 (holding that Almendarez-Torres remains good law). AFFIRMED. 1 (...continued) promulgate a policy statement authorizing a downward departure of not more than 4 levels if the Government files a motion for such departure pursuant to an early disposition program . . . ). 3
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