USA V. JAIME ALARCON-HERNANDEZ, No. 12-10606 (9th Cir. 2013)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 19 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff - Appellee, No. 12-10606 D.C. No. 4:12-cr-00400-CKJ v. MEMORANDUM* JAIME ALARCON-HERNANDEZ, a.k.a. Jaime Alarcon, Defendant - Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Submitted December 17, 2013** Before: GOODWIN, WALLACE, and GRABER, Circuit Judges. Jaime Alarcon-Hernandez appeals from the district court s judgment and challenges the 46-month sentence imposed following his guilty-plea conviction for reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction * 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). under 28 U.S.C. § 1291, and we affirm. Alarcon-Hernandez contends that the district court erred by determining that his prior conviction for attempted second-degree sexual assault constitutes an aggravated-felony conviction under 8 U.S.C. § 1101(a)(43)(A) that bars him from eligibility for a departure under U.S.S.G. § 2L1.2 cmt. n.7. Even if the district court erred in its aggravated-felony determination, it understood that it had the discretion to sentence Alarcon-Hernandez outside of the advisory Guidelines range but declined to do so in light of the 18 U.S.C. § 3553(a) sentencing factors. Alarcon-Hernandez does not contend that the district court imposed a substantively unreasonable sentence, nor would such a contention be availing on this record. Thus, we identify no basis for reversing. See United States v. Vasquez-Cruz, 692 F.3d 1001, 1005 (9th Cir. 2012) ( [A]ny erroneous application of [a] departure would be harmless so long as the sentence actually imposed was substantively reasonable. ). AFFIRMED. 2 12-10606
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